16/02/2021
THE GREY AREA ON CONTRACT LAW AND HOW IT AFFECTS YOU IN YOUR FAMILY LAW CASE
As you are already aware, your everyday transactions with your local store, semauso, tailor dude or mma Seapei for a varied number of things constitute some form of contract. Whether the transaction is on cash or credit basis.
Today, we will explore applicability of Contract Law in your Family Law case.
Similarly, the same codes and principles of contract are imbedded or govern many aspects of your
family law case and will likely determine its outcome. Prior to persons getting married, the law
requires them to first enter into a contract that will determine how their estate will be decided in the
event they divorce, or the other spouse dies.
If your marriage is regulated by statute, you will most likely have signed the ‘Instrument Signed Under the Married Persons Property Act 2014’, either form A nor B, depending on the marital regime you and your spouse opted for.
Spouses entering a ‘Marriage out of Community of Property’ contract will have to sign ‘Form A’ the alternative is for a ‘Marriage in Community of Property’ contract.
Basically, the introduction of Married Persons Property Act 2014 as it is crafted today rendered the famous prenuptial, antenuptial and premarital (whatever epithet best suits you) contract futile.
The provisions normally accommodated for in this common law form of contract are now the default
position as per the Married Persons Property Act 2014. The Marriage out of Community of Property contract basically means that you and your spouse have a contract in place that identifies what assets and liabilities are owned by each of you sole, at the
inception of your marriage moving forward. Ordinarily, an inventory of the assets and liabilities ought to have been crafted or listed, before the coding/signing of the relevant document casually referred to, as form A.
Mind you, this is a valid legally binding contract and will protect your property should your significant
half find themselves a subject of a civil suit(s) during the tenure of your marriage. One spouse being declared bankrupt, will not affect the other.
Should your significant other encroach into your property, the encroachment will obviously constitute breach. Breach of this contract will result in the injured spouse suing the other. Well, if you find yourselves in such a predicament as a married couple, then obviously your union has fallen apart, and it means you need the services of a legal practitioner.
When the parties decide to divorce under this regime, property protected under the subsisting contract will not be subjected to sharing with your other significant half.
They come instances, when spouses who entered ‘Marriage in Community of Property’ contract,
decide that their marriage is irretrievably broken and want a divorce. Depending on the level of
maturity of the married persons, their ability to engage and the ‘irretrievability level’ of the marriage, the parties can choose to enter into a property settlement agreement. This property settlement agreement will divide assets and liabilities of the matrimonial estate as per the spouses choosing.
However, it is of importance to understand that the default legal position as per this type of contract
is that the matrimonial estate is to be divided into two equal halves.
Besides property sharing, you can extent the consent settlement agreement to address time sharing of the minor children and child support. Once this agreement is endorsed by the courts, it creates a legal obligation that must be abided by.
It is of great importance to engage legal practitioners versed with family law when determining, coding the terms and conditions of such a contract. Legal practitioners, who will take into cognizance the suitable type of custody, when sharing the minor children and those children incapables of consent, no matter their age.
Legal practitioners with the know-how, will give the interest of minor children prominence when
determining the legal custodian vs the physical custodian, in the negotiations of the terms and
conditions of parental obligation within the foresaid contract.
Now, let us look at the rights and the legal obligations of single parents with reference to a family law case. Not being married should not negate or interfere with your legal obligation to maintain and care for your minor child(ren). Also, your decision as an unmarried person to leave/ get out of/ exit cohabitation, should not necessarily have a bearing on your ability to maintain and raise (access) your child(ren).
In the event, you are unable to reach an agreement on how to share custody of your minor child(ren)
with you former significant other, do not hesitate to engage legal practitioners who help with a legally
binding contract which will be incorporated into an Order of court.
The benefit in having the contract endorsed by the courts is to ensure that its breach directly connotes to the violation of a court Order.
I am guessing, you are wondering how it will be of benefit on your part if a party to an agreement
which has been made an Order of court is in breach. As already outlined, such a breach will be
construed by the courts as contempt which will most likely lead to harsh penalties such as civil
imprisonment, unless and/or the breach is remedied.
If you are considering a divorce, want to create a settlement agreement, or a parenting settlement
agreement you should consult a family law practitioner.
At Matebele Legal Practitioners, we can review the facts of your specific situation and tailor them to meet your desired outcome as your legal advisors.
DISCLAIMER: THE INFORMATION PROVIDED HEREIN IS FOR GENERAL INFORMATION PURPOSES
ONLY. AS SUCH, NOTHING HEREIN, INCLUDING OUR ENGAGEMENT WITH YOU ON THE PAGE,
SHOULD BE TAKEN AS LEGAL ADVICE FOR ANY INDIVIDUAL CASE OR SITUATION. READING
INFORMATION FROM THIS PAGE IS NOT INTENDED TO CREATE OR DOES NOT CREATE AN
ATTORNEY-CLIENT RELATIONSHIP
