The Circle of Life
By Jacobus Kotze
Copyright 2013 Jacobus Kotze
Shakespir Edition, License Notes
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COVER DESIGN & EDITING
Editing by Alec Chapman [email protected]
“Didn’t the Lord make you one with your wife?
In body and spirit you are his. And what does he want?
Godly children from your union.
So guard your heart; remain loyal to the wife of your youth.”
TABLE of CONTENTS
Specific meaning of words
Before we continue I need to explain the meaning of certain words used with boring regularity in the following pages. The list is by no means complete as I explained the meaning as far as possible in this book as well.
American Patriot means the author’s better half and soul mate. An American Patriot who works for the U.S. Navy and the motivation for all his books. She is very smart, beautiful and cute.
Antenuptial agreement means a contract signed before marriage to regulate the marriage dispensation and property rights. Some call it a pre-nuptial.
Common law wife means where two people live together as man and wife and have the intention to be man and wife. It is based upon the common law partnership and has grave consequences on debt. These days it will be applicable to gay and lesbian relationships also.
Contract also means agreement. It may be in writing or not but must comply with the essentials of a contract under law. Your antenuptial or pre-nuptial is a contract.
Creditor means whoever you owe money to whether it is a bank or loan shark or your wife. It means the person or entity you exposed your life to and are subjected to their whims and bad attitude.
Death certificate means the official document showing the cause and date of death of a human being.
Engagement to be married or betrothal means an understanding between two people (in some countries between a man and a woman only) to get married in the future and live as man and wife in the fullest sense of the word. I use the two words as if it has the same meaning but in some jurisdictions there is a difference which is so slight that I fail to understand it. This book is not meant to be a technical legal document.
He means she. There being no difference in equality of the sexes under law as it should be. Being a man I usually use the male persona in my books but it is equally applicable on the tougher sex too.
Hounds from hell mean the debt collectors coming after you when you default on your repayments. It is not meant to be derogative but descriptive only for the way they keep on and on and on. It does not imply in any way that they are indeed children of satan for they are only doing their job and a tough one it is too.
I mean me, the author or his legal advisory JKLS Africa. Also referred to as “us or we.”
Judge also means a Magistrate. In other words, the person who gives the verdict in a trial.
Law of delict means an unlawful injury done to you which caused you harm for which you want compensation. Breach of promise will be a delict under certain circumstances.
Lawyer means practising attorneys and advocates and I use the word in the general sense which includes both in the American sense of the word. The author was one for 8 years.
Legal Advisor means a qualified lawyer or company legal advisor but not necessarily a practising attorney or advocate. The author would qualify for this title if he so chooses but prefers the term risk expert for his legal consultancy is not only into law which is very boring for sane people. Another way of putting it is to say that the legal advisor decides which practicing attorney will do the company’s work.
Legal Justice has the same meaning as legal Justice taught at law faculties but in this sense more practical. In other words, not some obscure dream but something practical for the client to correct the wrongs done to him.
Long haired liberals mean the liberals who took human rights to such ridiculous lengths that lynch justice is now appearing. This term is not meant to be derogatory. It is said affectionately. We need them to cause havoc now and then or life may be boring. The authors’ pet dislike in life.
Marriage certificate means the document given to you by the marriage officer as proof of your marriage. You will need it at divorce also.
Marriage in community of property means a dispensation from the common law where a joint estate is formed with the parties as joint administrators which simply mean both of you are now the owners of one estate where your combined assets are thrown into.
Marriage officer means the official appointed by the government that is able to marry you legally. Not all Reverends and religious Ministers have such authority and you must ensure they do or your marriage may not be lawful.
Marriage out of community of property without accrual means two separate estates and no risk to be held liable for the other spouse’s debts and no accrual meaning at divorce each spouse takes what is his and walks away. It is very unfair toward the lesser income / growth spouse.
Marriage out of community with accrual means two separate estates and no risk to be held liable for the other spouse’s debts but at divorce the growth in the two estates is calculated and the lesser one is entitled to one half of the difference in growth. It is the only fair system to be married on.
Rule 43 Application means an application to the High Court for interim maintenance before the divorce is finalised. It is to level the playing fields and not expensive. Impractical of course if the other side does not have money to pay.
SAP COIN means South African Police Counter-Insurgency Units. These were specialised Units trained and used in counter-insurgency roles during the war. Their members wore a camouflage uniform and looked like soldiers to the uninformed eye. Clashing with SAP COIN meant almost certain death to the terrorist and they were always spoiling for a punch-up.
SAP means South African Police Force and the National Police Force of South Africa between 1913 and 1994. It was replaced by the SAPS or South African Police Service and of a para-military nature with military ranks, training and discipline as opposed to the SAPS (with a more civilian orientation). It had about 130,000 heavily armed men and women spread all over South Africa.
Sheriffs mean the messengers of the courts. They have no police functions or authority whatsoever and only exist to serve paper or pleadings and assist the plaintiff with attachments. Many are former Police officers and since they are not part of your problems with your soon to be Ex they should be treated with respect.
Singular means plural where needed and vice versa depending on the normal use of the words contextually.
The law is neutral means that equality before the law is guaranteed in most countries which make the law neutral. It works as well for you as against you. It also means that if it wants you to do something positive like signing a will to make it lawful then you have to do so.
Your worst enemy means your bank or other creditors who you owe money to and is in a professional relationship based on sincere mutual distrust from day one. They should be treated with considerable suspicion. Also called banksters for obvious reasons!
“If you must break the law, do it to seize power: in all other cases observe it.” Julius Caesar
A few words to my readers & indemnities
It is always fascinating to see how a couple in love reacts when you discuss divorce with them before they get married. Some look at you in horror and others with incredulity. All dismiss the very idea of divorce as plain crazy and frankly irresponsible if not totally inappropriate. Many said to me I will bring bad luck to them by discussing this topic and made the sign of the cross in my direction which I am prone to believe is a blessing. I hope so anyway for I would not like to think otherwise that it may be to ward off the curse known as me.
* The cross sign is alien to my Afrikaner culture. We simply don’t do such things and we almost never kneel in public for prayer either. It is though expected for the men to stand up with bowed heads and most certainly without a silly hat on your head.
Others mutter oaths of the wrong kind under their breath and give me dirty looks designed to bring the message home that I am a middle-aged twice divorced fellow who forgot all about love years ago and now want to spoil their happiness! That by the way is simply not true. I believe in love and am very much in love with my American Patriot who is cute and beautiful and super smart. Never been this happy in my life. Unfortunately, statistics prove beyond any doubt that your chances of not getting divorced are one out of three. In other more negative terms you have almost a seventy percentage chance of making divorce lawyers richer at some stage in your life. It makes for sad reading.
Seventy percent against you is terrible odds in any language and the worst thing about this is that your second marriage is even more prone to disaster as statistics shows a second marriage, probably because of baggage, is the one you end the quickest (mine lasted a year). As you probably already know, in life, the first time round is always the worst except parachuting unless you are an adrenaline junkie or something polite people avoid.
The other day a time-honoured client sat in my office with his grown-up son asking advice on the legal consequences of getting married. Now if you know my ways you will know that I have serious reservations on a father & son client combination and usually dismiss them as a scam before they even start talking business. Indeed, we discussed this type of scam in my free book Tricks of Trade – Memories of a Rogue Lawyer. That book dealt with what forensic law (my field) is and the classic scams my clients are subjected to in Africa. In case you have not had time or the inclination to read it (not that I blame you for law is very boring for sane people to start with) I will have you know that one of the best scams is where a grey hair dad and his hideous son approach you (always with the Bible under the arm) to do business. Never once failed to lose money in such cases! Running away is my advice across the board. These types have done my clients in so many times that I habitually refuse to even talk to them.
This was different though! I knew these clients from way back and the son who was groomed for years to take over his dad’s business as it should be. It was very obvious that he was very much in love with the Chosen One (also sitting there) holding hands and beaming at the world. Quite nice that was too for couples in love tend to bless everyone around them in my experience. However, I admit I was a bit flabbergasted as to their lack of distrust in each other or let me rather say in the circle of life of which they never heard of before. Made me feel my age that did.
Thus I gave a long talk (I am paid by the minute you know) on the legal consequences of marriage and relationships in general. As with any contract I started with the divorce procedures much to their alarm and I think it was only good manners which made them listen in respectful silence and even invite me to their wedding. At least they did not make the sign of the cross in front of me though I saw something suspiciously comparable on the security cameras after they walked out shaking their heads to their truck parked in the yard.
I tend to get involved with clients more than what the conventional lawyers do as I can afford to so, being independent and being unconventional in my approach. As a matter of interest the wedding was very nice and now we are all looking forward to celebrate the arrival of a new grandchild with my client in a few months. It means more work for me in the form of updated testaments (also called wills) and a Trust fund for the child.
* Since the book was written we welcomed a healthy boy and I am glad to say to you both him and his mom, the Chosen One, are healthy and in good spirits. The baby did make the cross to me or what looked like it when I was formally introduced so I gave his mom my evil eye for teaching her son such strange ways.
Their lack of distrust made me think though. How many of my readers are aware of the circle of life? You know? Where you look up one day and see the woman of your dreams gliding (they never walk) towards you and then after serious dating you get married and live happily ever after (I hope) or stand in the divorce court (I hope not) or later on at the funeral saying goodbye for a short while only (I hope). Along the way you may be rich or poor and have kids or not. This is the circle of life and since everyone falls in love at some stage so no-one really escapes it (I hope). Dating is a big deal in our lives as it should be.
As an observation I wish to state that dating does not stop at marriage but only at death unless you believe in soul mates where it may carry on after death. It is a known fact that a man cannot function alone (nor do two things at the same time) and as a result the much improved gender was created and the two became one for the better of mankind. It is the natural order of things I say. People fall in love and whether they are of the same sex or opposite sex is irrelevant to us if not to the law as we will see if boredom doesn’t get you first.
Someone smart once said all that is certain in life is death and taxes. Benjamin Franklin, the First American that was in case your history teacher failed you. I wish to add onto this wisdom by saying the circle of life is also certain. Hence, through the centuries the law involved itself in relationships and now regulates who you can date, marry and what happens in divorce or death. This is what this book is about. Your rights and obligations whilst dating for it is a more complex business thank what you would think at first glance! You can trust lawyers to make something as simple as love complicated.
Dating has consequences which some say the worst of is marriage but I am sure they mean it better than what it sounds! Just to be very clear on this subject for my American Patriot always reads my books before you do, when I say dating, I mean dating each other inside the marriage or relationship and not the sowing of wild oats in general. It is meant to be more than a silly fling and something serious. Since she is known far and wide as Mrs Always Right I know what is good for me.
As an example of what I mean let us look at some of the legalities to consider before you ask a woman out on a date for it is a dangerous concept in law! (When I say woman I mean man too for it is one and the same thing in theory if not in law.)
One, is she married or not for that may be adultery if she is though granted it is not a crime in most countries but may be a delict (civil claim) against you if you steal a man’s wife. This may cause you financial loss in the future if lucky for in several countries both of you may be stoned to death if caught which is silly (my word for stupid) to say the least. Asking a same sex partner out on a date may be a crime and jail time for you if not worse in many parts of the world including Africa but not South Africa. Certainly asking a gay fellow out who turns out to be straight may also end up with you being assaulted for your kind attentions. Many parts of Africa are gay phobic and they believe in corrective rape which is even sillier.
Two, you must declare your HIV or AIDS or other STD status to her if things go really well after dinner if you know what I mean. My American Patriot once told me in great detail the difference between the bases (an American term and unknown to us non-Americans) but I forgot it which is a disturbing tendency I suffer from when I look in her green eyes! As you know I cannot do two things at the same time to start with but in all seriousness, you must tell your date before the act so to speak. If not out of common decency reason, then for legal ones for it may be murder (or attempted murder and also assault) not to do so if you know you are Positive and still continue to become intimate without warning her. Otherwise how can there be an informed decision from her side? However, this simple legality leads to all sorts of problems which we will discuss below:
Are you infringing on her privacy to ask for evidence of her status? No, probably not but it may be bad for your future prospects being a bit of an insult to some of the improved specie. It is in this day and age admissible to ask I suppose for all are equal in front of the law or supposed to be. However, in the past, the mere insinuation that a woman could have such low morals to be able to have such a disease would have been slander and defamation of character. The law also presumes (Roman law that is) that an unmarried woman (not man strangely enough) is a virgin until married and if widowed or divorced then chaste at the very least. Of course any legal presumption may be overturned with evidence.
There are many cases in history where we suspect the King or others died of syphilis for failing to ask and visiting places of ill repute (another crime in most countries). We also know of cases where her brothers came after you with evil intent and a rope for your neck and you had to take a ship to the New World in indecent haste to escape them. Especially if you failed to marry her after the deed so to speak! Seduction of a virgin was a serious crime and even today may still bring you to court to please explain your beastly behaviour sir. It can cost you a few bob too for compensation as we will see later in the book.
Three, what do you do when her horrible little dog attacks you from behind (as they do) whilst you are exploring her in a moment of agreed and negotiated passion and the ghastly hound decides to protect its mistress? Does the law allow you to kick the brute in self-defence and if not quick enough can you sue her for your medical expenses or she you for her dog’s injuries? How do you explain that to the local emergency room I wonder? Will that affect your dignity?
Four, what happens if you are in a car accident in your car on the way to dinner? Who claims against whom? Well, it depends on what happens and usually insurance will sort that one out for she is not a paying passenger (I hope). Or (and this happens more often than you would think) one of you chokes at the table or more probably gets food poisoning. Would that be your fault in law or the restaurant you chose? Are you held liable under precarious liability?
All the above examples happened in real life but make no mistake dear reader. Nothing will stop love and dating despite the few legal risks your run doing it. As said dating is the great game after the great game (espionage, according to Kipling).
I know I sound cynical when I start with divorce proceedings when talking of marriage which is the supreme state of happiness by design. I sincerely believe that if you are a decent man you will do the admirable thing and marry your woman even if you know your chances of divorce court is two out or three. You know it always happens to someone else and not you.
Interestingly research shows that modern women do like the idea of marriage even if the long haired liberals disagree and say marriage is old fashioned and outdated. Strangely enough most of them are married and not living in “sin.” I wonder why they cannot have the conviction of their ideas to follow it in real life. Don’t know and don’t give a (you know what) either if you saw Gone with the Wind.
In fact, the longer you wait the less are your chances of being married and the greater that she will tell you to take a hike. There is nothing wrong with marriage anyway. It is nice. A lack of money is no excuse for the wise people (not long haired liberals for they all have money) say if you wait until you have enough money you will never get married. Thus by all means don’t let this book stop you. Take the plunge and be happy.
I believe in the sanctity of marriage. I also believe to end a marriage if needs be. Love is a fairly simple concept unless your actions make it complicated and I hold the theory that you either are in love or not. You really cannot force yourself to be in love and if you do you are bullsh-ting yourself. It will never work in the long run for it is based on pretentiousness and not real. It cannot and will not last if she is not your soul mate. You will never be happy and worse than that deny her the right to find her soul mate and soul mates are always hunting for each other. At some stage she will leave you or you her. The law knows this and thus we will talk about divorce at some length later on. It is a new beginning for both of you and not the end as some believe. Sometimes divorce is the only answer.
At this stage I need to explain to you if you are new to my ways that you will find that in this book I mention from time to time my other books. Several of the subjects we discuss here are already done in greater detail in my other books. Thus it is possible that about five percent of this book is quoted from my other books and that is not laziness on my part. Basically there are only that many ways to explain something as inherently boring as law and it makes it easier to stick to one formula.
I also use * to describe something behind the paragraph or the updates as the book is always updated (well, once a year) and a work in process. It is meant to make it more interesting (law is inherently boring for sane people). You will also note I mention my better half now and then for the simple reason that her outlook is totally American and mine not the least. Thus, I translate the applicable law into American terminology where necessary. Some readers love it and others hate it. I hope you find nothing to take offense with.
This book is not intended to be the final word for your difficulties with your soon to be ex-husband / wife or in your relationships. To protect myself I must inform you I cannot take responsibility for your actions based on this book and to see the professionals when needed. All legal problems are different and may require a different approach and it differs in different jurisdictions. However, it is always satisfying to have a basic understanding on what is happening behind the Latin words and legal mumbo jumbo. Law is really not rocket science and lawyers are way overpaid in my opinion. I tried to explain the applicable law in plain (simplified) language without getting into tedious technical legal arguments which are boring for even insane people. Understandably, it is more complicated than this. The opinions in this book are mine and mine only. The famous English Judge, Lord Coke, once said “I may be wrong, in fact I frequently am wrong, but I am never in doubt.” This summarizes my feelings about life in general. I do not claim to be always right but I seldom have doubts.
As an independent legal consultant, I believe I am more able to speak my mind than others. In my younger days I thought I could bend the rules as I please and so I did. Always with the best of intentions of course but life simply don’t work that way and the local law society kicked me out years ago for exactly that. I deserved it even if it almost destroyed my life and I regret my actions which led to it. It was really traumatic for a second generation lawyer as my family have more lawyers than normal. It is rather ironic but only long haired liberals and communists complain. Therefore, my legal consultancy is not a law office and I do not call myself or pretend to be a practising attorney (lawyer in American) though I was one for eight years and learned all the tricks. Since then I worked as legal advisor all over Africa with different legal systems which makes me cross jurisdictional expert (no big deal I assure you). Academic discussion is most unwelcome to my clients and I suspect readers. I always say it only has a place in lecture halls or at functions when you are bored stiff and trying to impress your date (never worked for mine and my American Patriot is much smarter than me to begin with). Consequently, we will be practical in this book as we were in the previous ones. What you read here happened in real life.
The law is neutral. You will hear me say this in every second page and I mean simply it affects both sides equally or should. Anything which is unbalanced is unnatural. When the law leans towards the criminal because of the human rights issues so popular these days it will lead to the people getting fed-up enough to take the law in its own hands. Accordingly, we find executions and or public floggings and stoning to death to punish suspected criminals in Africa. Or businessmen and (even) lawyers murdered in what is clearly an organised hit. This is very wrong and though I always act for the Victim of crime and never the criminal such unilateral action cannot be condoned as justice. Note however that human rights are essential in law but only up to a point. Particularly in a place like Africa which is not as super civilised as where you may be. It cannot be denied and our ways are not your ways. Our traditions must be respected as we respect yours and this includes our laws and legal systems.
The international corporates forget this and then shriek foul play when the heat is turned on them for disregarding the laws. But how would you feel if an African based company comes to your country and creates no infrastructure, pays no tax (legally of course) and imports Africans to do the job and in general acts arrogantly because they think (very bad advice I am sure) that they will get away with it? Will you not wonder when Government will sort them out? Respect goes both ways but you can read about it in my book Tricks of Trade – Memories of a Rogue Lawyer or under its previous name Tricks of Trade – Forensic Law Principles in Africa.
* I changed the name when I realised only Academics downloaded it and then started boring arguments over it. The book was and is meant for the businessman coming to Africa and to prevent him from being robbed, kidnapped or otherwise done in.
Keep in mind when I speak of law I mean South African Law which is based on Roman Dutch Law with a lot of English Law (the Colonial Master) influences. As such it is part of the Common Law System and not the codified Civil Law Systems you may be used to. Nevertheless, what you read here is applicable worldwide. The legal principles are the same and I know for I am (last time I say it promise) what is called a cross jurisdictional expert meaning I am able to understand the law in more than one country. From experience I know that the law does not change that much from country to country for human behaviour is equally good and bad everywhere. For example, murder is illegal in all countries though in some you may not be sentenced to death for committing it. The same with family law even though the procedure may be different the results and principles are the same. Divorce is divorce in any country. How you get divorced may differ or even when as some wants you to wait for a year and other not. We will look at it in more detail as we go along.
As with all my books I say I am not a writer and I certainly claim no recognition as an Author. I apologise for any grammatical errors in advance. English is my second language and this book is written in South African English which is not the same as American or what is known as the Standard English. Since many of you reading here are American I tried to give the applicable American terminology where needed in brackets. We Africans are polite people (especially when someone points a gun at us) and I did the same with English law terminology. For example, what we understand as a delict will be a tort (nasty word) in England.
It is also possible that you are new to my style of writing and I accept that my sense of humour may not always amuse you. Much of what I write here is tongue in the cheek for life is never overly serious to me though my message is. For that I do not apologise. Long ago I decided to approach life on my own terms which are subject only to God who I fear very much indeed. Whatever I do in life is to His honour and only because of His grace. I claim nothing to my own endeavours. This is also why I spell satan with a small S if he should feature in my book which is not often. That hideous creature will not be honoured by me in any way and thus does not rate a capital S. And I don’t care if it is grammatically incorrect. I do the same with banksters whom I call your worst enemy. We all have our peculiarities in life and me more than most.
I ask that if you enjoyed reading here and feel the need to donate then please contribute to any American Veteran Organisation or your choice. That honours my American Patriot who I love and she works for the U.S. Navy. She is not only beautiful but way smarter than me as well. As in all my books I thank her for her support and love and above all, scissors.
* I am very sad to say she died, age 41, on 21 May 2014 after a short (unexpected) illness. I will always love and cherish her and we will meet in heaven one day. God knows best. On request from many readers I wrote a short Tribute to her which is available online at . Do not read it unless willing to cry for it is very depressed reading. “Honey, I miss you terribly but life goes on and I am doing my best here. At some stage and with God’s permission, I will join you in heaven and ‘we’ will be ‘us’ again. It is only a matter of time and I can hardly wait.”
Regards & best wishes,
“I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.” Martin Luther King, Jr.
The South African Legal System – a short overview
I quote mostly in this chapter from my book Your Worst Enemy which is about the way banks treat you (illegally in many cases) and it is to give you the very briefest of backgrounds. I cannot teach you law in one book or even ten books! It takes six years of study to become a lawyer and then you still know very little though it takes years of practise to understand that.
As said South Africa and the majority of African nations has a Common Law System. The difference between Common Law Systems and Civil Law Systems is so blurred that no-one really knows the difference anymore but it comes down to the codification of laws and principles. Common Law Systems are less codified than Civil Law Systems and depends more on case law and previous court decisions for clarity called the “stare decisis rule.” Some say it is written law (Civil) versus unwritten law (Common) but is easier to understand with the examples below.
Both systems may have juries but in South Africa we got rid of juries many years ago which is a good thing in my eyes but then I know no other system. Obviously you may feel the opposite and that is also fine. Many of my clients are horrified with the lack of juries and feel quite strong about it so you are not a long hair liberal for having such feelings. Each to his own I say. For myself, I am very sceptical to allow a person untrained in law to decide my fate as I doubt their ability to follow complex legal arguments. It takes many years of study to understand law and even then I have my doubts if we really understand as much as we say we do even if it is not rocket science. I don’t like the subjective approach of a jury system either. What if my face reminds them of something akin to satan? I want to see objectiveness in court unless the rules state otherwise as with self-defence where the court tries to understand subjectively what you were thinking at that stage. There is one hell of a difference whether you thought (subjective) you were in danger and if you actually were in danger (objective). It is the difference between walking out of court or into a cell. That by the way is the question in this unhappy Pistorius incident which recently happened (later found guilty of murder).
I read the other day that apparently, Apartheid South Africa got rid of the jury system because only white people (you must be able to vote) would be jury members and that meant that black people (no vote) would be treated unfairly. That is hilarious and utterly shocking being on a normally reputable news website for the real reason was to get rid of everything English where the jury system came from originally. And up to 1969 you could still choose a jury if you wished whether you were black or pink. Further it was felt that the jury system made a mockery of justice with silly rules which delayed justice endlessly and that the jury members were unable to follow the legal arguments. Skin colour had nothing to do with it otherwise it would have been brought back after 1995 when Mr Mandela took over. It shows to me once again to be very careful on what you read on the Internet. It is mostly half right or half wrong. In law that is very dangerous. It is a boring subject but usually we know what the law thinks is wrong or right even if we may disagree.
You may also not believe me but even in Apartheid South Africa the court procedures were very fair and impartial even if the laws were most definitely not. Even the freedom fighters (known by us as terrorists by the laws of the day) had their day in court and afterwards admitted (proudly I presume) to lying under oath. Not that I blame them. Apartheid cannot be defended and I say that in all my books as I feel quite strongly on the subject. They did however had full access to good lawyers (well paid by the international community) which is more than what happened in other dictatorial African states under lifelong presidents like Idi Amin. However, there is no doubt the white juries did look at black folk a bit sceptically which is why I am against the death penalty also.
Another difference between the two systems which I noted is the way lawyers behave. In most of Africa any lawyer walking around in court instead of standing at his desk will be jailed for contempt of court. You simply don’t walk around and stand with your hands in your pockets giving the Judge or the witness the evil eye. He will most certainly have a fatherly talk to you which you will regret very much. Those Judges are very stern people and I know that well for my dad, bless his soul was a regional court magistrate (like a district judge in American). I can tell you it was utterly impossible to lie to him without dire consequences for he could smell a lie from his years on the bench and so it proved. He was also a very fair man who always listened to our explanations patiently before dispensing summary justice (well-deserved I assure you). That is another rule of law which we adhere to. Audi alteram partem or hear the other side before making a decision. That is why both sides get the chance to speak to the court and ask the witness questions. The court itself is neutral as is the law and will only ask questions when it needs to understand something.
My German and French clients don’t understand this way at all. Apparently their Judges get stuck in whenever they can. Good luck to them. If it works for them it works for them. It was Napoleon I believe who codified the law system in modern times. Before that Justinian did it with Roman law.
* I can tell you it is something worth seeing all the codes of Justinian in Latin. Row upon row of books and you must be insensitive not to understand the knowledge contained in those books. I just love libraries even if my interests these days are more into military history than anything else.
We have the higher courts (formerly known as Supreme Courts) with inherent jurisdiction except it seems on constitutional matters. The men on the bench called Judges and have different ranks up to Appeal Court Judges who are genuinely clever people. Inherent jurisdiction means they can judge whatever they please to judge. Usually it is the most serious offences or cases though. The lower courts are creatures of statute without inherent jurisdiction and the men on the bench called Magistrates. The limitations are set by law in private cases but not in criminal law. These men are experts in criminal law and judge serious crime like murder and not to be taken lightly. They have the same qualifications and law degrees though Judges tend to come from the barristers and Magistrates from the State Prosecutors or DA Office in American. Very few Magistrates actually passed their bar exam but this should not be held against them. They only took a different career path and on their fields they are very good.
The other major difference is that South Africa and most surrounding countries differentiate between attorneys and advocates same as the UK with its Solicitor’s and Barristers. They have the same degrees but different training and both write a tough exam to become members of the either the law society (attorneys) or bar council (advocates). There are rebel advocates around who belong to their own council but I do not know them well or use their services.
* This will change soon I think and we will only have lawyers like I understand the American system to be.
You, the client, cannot, by law, approach an advocate directly. You must go through the attorney which causes a lot of stress for the attorney to collect the advocate’s fees and leads to double fees being charged for both must be paid by the client. However, this is a good system for the two don’t mix well. Attorneys by nature are not higher court animals and advocates are. They are specialist litigators and you find them in the Higher Courts doing plenty talking and let me tell you, taking tremendous strain for the Judges are bound to ask questions which they have to answer.
I sometimes think the Judges are lonely and their need to talk to you is distressful in the extreme. The advocates deserve good money for what they do for any weakness of knowledge is exposed in full view of colleagues and the public. It is a tough life. Even they have different rank from baby junior to silk or senior counsel (Queens Counsel in the UK).
All the above is used in this book sometimes as lawyers in the American sense of the word where you have a man who obtained his law degrees, passed law school, wrote his bar exam and is now practicing as a lawyer for his own account. Technically it is wrong to use it like this but it would be even more boring not to. I am sure you know what I mean when I say lawyer.
All lawyers as a general rule wear robes in court. The robes don’t look the same and are divided into different ranks of seniority. Courts, whatever their jurisdiction, are very respectful places and very traditional. There is no shouting or other disrespect shown and you need your wits to survive never mind legal knowledge. It is the way it should be for a court is the ultimate expression in the search of Justice. This is important for you to remember because the court will protect you against your soon to be ex’s lawyers. They may bring you before court (we will get to that) but they will not be able to humiliate you in the court as most (read 99.9%) of Judges or Magistrates will not allow such behaviour. They are very correct men in the German sense of the word who expect and demand that everyone in their courts stick to the rules of civil behaviour. Even the worst mass-murderer of children is treated with respect and a lot of leeway.
This is important for the myth exists (it is created by Hollywood and the likes) that the court is a place of utter humiliation and people need b-lls of steel to go there. Yes, if you start lying to the court things will get very hard and tough for you. No doubt, for the search of justice is sometimes brutal. The process is fair though and I assure you that you will get your chance to speak and to state your case in your language of choice and be treated humanely. Thus, the threat from the arrogant ones of “seeing you in court” is very much an empty threat. Just make very sure you get there on time and are dressed in your Sunday best suit and you have all your documents with you.
The difference between Private Law and Criminal Law: It is rather important that you understand the difference and is not rocket science. Private Law is much more complicated and encompasses a much wider field than criminal. If you look at a wall one hundred yards long and fifty feet high and you take one brick out of that wall you have Criminal Law. The rest is Private Law which divides in this country at least into Commercial Law which is everything to do with business and Intellectual Property. Further it includes everything from marriage to divorce to delict which translated to a wrongful act and known as torts in other countries. All contracts fall under Private Law which is sometimes referred to as civil cases. I deliberately don’t use that word because it causes confusion between the Civil Law Systems and the Common Law Systems we discussed before.
The terminology is different between Criminal and Private Law. For instance, in Criminal Law we talk of the accused against the State with a State Prosecutor or DA Office in American. This is where defence council comes in to act for the accused which may be an attorney or an advocate or both. You will also have police detectives and victims of crime.
In Private Law that terminology is replaced with Plaintiff versus the Defendant or Applicant versus Respondent in applications or notices of motion. The fastest process of obtaining relief for your client is called application (motion) procedure and the best known example would be an interdict or injunction in America. Consequently, the person asking the relief is known as the Applicant and the opposing one the Respondent.
Occasionally, in very specific cases, the Respondent doesn’t even know about the application until the order against him is granted. This is called ex-parte applications but in fairness since the law is neutral the Respondent will have his day in court to argue why the judgment should not be made permanent against him. Most importantly here is that it is almost always without human witnesses and judged only on the papers in front of the court. During divorce proceedings, we use this often to gain temporally maintenance under Rule 43 which we will look at in some detail. Rule 43 is not an ex-parte application by the way. The other side are allowed time to respond.
The longer process in Private Law is via summons where the Plaintiff sues the Defendant for whatever relief he needs. This will be the classic divorce or damages based on delict as you see on television with witnesses. It is a much longer process and in you will seldom be in court within 3 to 5 years from date of summons in the High Courts if defended. Why? I say law is not rocket science but in practise it becomes exceedingly complicated and the process bends backwards to be fair to everyone. Thus, it takes time and the courts exceptionally busy. But have no doubt. The wheels of justice are slow but it keeps on moving. Even in Africa.
All change of status of a person is dealt by the High Court which includes things like divorce and being declared insane or dead (recently the law changed to allow Regional Magistrate Courts to grant orders of divorce). The High Courts take longer but are much more expensive which is a nice tactic for your soon to be Ex or so they wrongly believe. Wrongly because nothing prevents you to act on your own behalf and thus the money comes from his pockets and not yours at this stage as their lawyers want to be paid as the case goes on and not at the end. Lawyers never work on risk unless there is no risk as with certain claims against the road accident fund. Generally speaking though, lawyers want to be paid for work done as it is done. It is good for cash flow and the client does not realise how much he already paid if billed in smaller amounts or so we hope anyway!
* My American Patriot says I am just cynical and even lawyers deserve to be paid if they did the work! Thing is, many clients simply cannot afford the fees and then what do you do? Is very difficult for me anyway to refuse to help which is why I wrote my legal books free of charge. To assist the average Joe who cannot afford me. Some topics, like how to push back against an evil bankster, are just too important to charge money for. See Your Worst Enemy which deals with this very subject. A book that I am told cost the banksters millions, and if so, good.
The procedure between an application and summons is vastly different but fair. The Laws of Evidence regulate what is allowed and what not but even that differs as you need a much higher burden – “beyond reasonable (note not all) doubt” in criminal cases than the private (civil cases) it is based on “the balance of probabilities” which is much lower. Why the difference? The sanction or punishment in criminal cases is not just money but your freedom (jail) or even death (not in South African law) which is deemed more serious and thus a heavier burden is placed on the State to prove the case. There is also a huge difference in owing someone money and being a criminal convicted of fraud.
Read my lips: Only lawyers benefit from trials which is why we always advise to settle the matter and avoid hearings as much as possible. It is simply not good business for us to waste time in court. Always remember that if you say something or allege something in law, you must prove it and to do that you need independent witnesses testifying to your version. Further if you introduce a piece of paper you need someone to explain what that is. A human body always goes with paper in court for it cannot talk on its own. The reverse of this is also true. That what you do not deny will be seen by the law as admitted. Therefore, if your soon to be Ex says z you deny it. Sometimes this starts what we call a paper war and enriches the lawyers involved. We will not be bothering ourselves with criminal cases in this book for your problem is purely in private law. Your Ex may try to involve the criminal side of things by laying a criminal charge against you for bringing back the children later than agreed or whatever else they can think of. My advice is once it becomes criminal getting yourself professional assistance and you can do so on the State’s costs with Public Defenders etc. (We call it pro deo work.)
Let us look at the processes in general which are followed in private cases
This is just an overview for it is impossible to teach you how to become a trial lawyer without years of training and you need a killer instinct which may not be natural to you. When I started the book, I thought of going in great detail into the Civil Procedure Act and explain exactly how to defend yourself but I realised that would be impossible given the variances of factors in each individual case. It comes with experience only.
First point is you don't need a lawyer and are allowed by law to represent yourself. However, there is a saying in law that a lawyer representing himself has a fool for a client. Thus you really should get professionals involved if you can afford to do so. Otherwise look at the local law schools that do a lot of pro-amico work. The agreeable thing about being a non-lawyer defending his rights is that the court does treat you with much more sympathy if your pleadings are not 100% correct. Remember here there are always three parties involved with pleadings.
You are the first one. Your soon to be Ex is number two and the court who issued the summons is number three. All original papers always go to the court file for evidential reasons. How do you do that? Very simple! You deliver all three documents first to your soon to be Ex on the address of their lawyers given in the summons and they sign for all three documents and keep one copy. The original goes to the registrar of the court who signs for it and on your copy. Sign means to stamp it with the official stamp writing the date and time on as well. You keep your signed copy. This is called service of pleadings and the pet hate of all article clerks who do it daily as cheap labour. If you read my book Tricks of Trade – Memories of a Rogue Lawyer, you will know I have a very low opinion on the abuse faced by article clerks in the profession.
A summons for divorce is always from the High Court with a Particulars of Claim attached and must be served on you (and only you) by the sheriff. For now, let us say the summons was issued and is now in your possession. It reads like a story book. Which court, who is the plaintiff and who is the defendant (you) and what they want in the particulars of claim plus the prayers (what they ask from the court) at the end. It will also give you time limits to respond in and the address of the lawyer involved.
You may now defend the summons by delivering a notice of your intention to defend the matter and also within a reasonable time your plea. In your plea you set out what you want as a divorce cannot really be defended in the sense that you don’t want to be divorced. The mere fact that a divorce summons is served on you indicates your marriage is gone and will not in all honesty be healed again though of course it may happen. This is also because we follow the no-fault system which I will explain later on to you.
Therefore, the court fight is only about who gets what (including children) and lawyers love it when you argue for years about cr-p. They make exceedingly good money from your unwillingness to settle and act like a grown-up and may even encourage you to stand up for your rights. Revenge must never ever be your motive unless you really have a lot of money to waste and lawyers will gladly take it from you. That is why we say get the divorce over and done with and settle the matter. At that point it is quick and relatively painless and cheap enough.
If, however you keep on fighting (defending in lawyer language) the normal civil procedure is followed with pleadings being issued from both sides. Once pleadings are closed a court date will be applied for by your soon to be Ex for the one who issued the summons is dominus litus meaning he has to drive the process. Failure to serve your pleadings will lead to what is called a notice of bar where you have a few days to either do it or be barred from doing so.
This is good news for you as it means you will always know what comes next for the bar notice will tell you. That is why I say your soon to be Ex will help you during the process even if unwillingly. Bar notices work both ways since law is neutral and you can force your soon to be Ex also to deliver what you want. Personally, I consider the use of a notice of bar as the very last resort but that is me who tried to deal with colleagues in a proper manner. I am pleased to say my legal consultancy outsources all litigation as we consider this a waste of my client’s time and money and worse, our own. Besides we are not geared for it and never allow strangers into our offices anyhow for security purposes. Even known clients are met at neutral places most of the time and music must always be playing in the background in our offices. Being unconventional is a way of life.
* We take industrial espionage quite seriously. You may not know this but research indicated incredible numbers as an indication of the problem. I quote from my Book The Egg Breakers – Counter Terrorism in Sub Saharan Africa: “On industrial espionage the available statistics (for what it is worth) tell us that Germany loses up to $87 billion per year. That is roughly 30,000 job losses. Since America has an economy five times bigger than Germany the maths shows us American losses at a staggering $435 billion and about 150,000 jobs every year which is terrible in any language. A quick calculation shows me that 410 Americans lose their job every day because industrial espionage is not taken seriously enough.”
You will be asked and ask yourself for discovery of evidence intended to be used in the coming trial. Once again it is impossible to state all the different evidence you may use as it depends on your case but usually are psychological and social worker reports. Just follow the basics as discussed here. There exist many law clinics where you can turn to for assistance with your pleadings.
Just before trial a meeting takes place called a pre-trial conference which is generally at the senior lawyer’s offices and you will know about it for you will be informed in writing. Mostly settlement is discussed and you must attend. Since the meeting is arranged you can come to an agreement on a mutually acceptable time and place. It will not postpone the trial date so it is of no use to you to play around with dates. Attend; make note of what is said and leave. We will deal with all above later on as well again. I realise it sounds a bit complicated.
Let us carry on to more interesting things now (as far as law can be interesting of course).
The Church and the Law
One of the major problems we have in law is the Church and people who want to bring their religious beliefs into law. The two simply don’t mix for there are many different religions and it cannot be denied that a lot of Western Law is based upon Christianity. Frequently this is not a problem but when it comes to family law Muslims for instance have other ideas on marriage and the procedures how to get married and with how many wives. I have a problem with mixing religion with law and I explained it in my book Tricks of Trade – Memories of a Rogue Lawyer as thus:
“You may not agree with me (join the club) but the Bible has no place in Law unless you want to create a Christian Sharia Law which I am sure you don’t want to do. If you follow that notion, then women will still be in the background unable to cause the havoc we love them for. Those times do not belong in modern society and cannot be brought into the modern world without thorough consideration of its effects as some preach.
Why should old customs not be imported into modern law? An eye for an eye sounds good. Let me explain three thought-provoking legal principles to you in this regard:
Up to 1984 women were only in charge of the kitchen supplies in most marriages in South Africa. The rest of the time she was subjected to her husband in law. This meant once married she needed her husband’s signature on all contracts except where she bought groceries for the kitchen. Does not matter if she was a lawyer or medical doctor herself! Husband outranks her because he is a man and only because he is a man. Thus, she could act in her own capacity in the kitchen only. A second-class citizen then because she married in community of property. That comes from Roman times and was changed by an Act to give her more freedom.
In the second example, and I like this dictum, our Roman forefathers forbade you as a husband to give the wife gifts. Thus, you are breaking the law at her birthday, Christmas and I hope in between too. How is that you say? Why did they create this law? It is silly, or is it? They had good reason and the best of intentions. The Romans believed a man should not buy the love his wife should give to him for free. Thus, no gifts legally. It makes sense if you think of it. Of course, none of my previous wives took kindly to this very reasonable explanation so I broke it all the time, sadly to no avail. The point is that it is still law even if ancient and would not fit in today’s society as much as certain men would want it to be. My American Patriot, flatly said that she is not subjected to Roman law as an American Citizen. I am not very smart but I am not stupid either. I get it and break it whenever I can. You know she is known far and wide as Mrs Always Right.
Then thirdly there came a remarkably clever lawyer who wanted to bring the Roman monstrum principal into modern law. Let us look at what happened. This fellow defended a woman accused of organising abortions which at that time was against the law. Abortions could be obtained legally under strict circumstances (rape, incest, danger to the mother etc.) but this was not one of them. Consequently, in court he based his defence on Roman law which said something like “if the child is born in such a deformed way to look like a monster it can be killed legally.” Thus a foetus looks like a monster and thus be killed legally or so he argued with much vigour. Like all good arguments it made sense to the court who in fact agreed and then on appeal the verdict was turned over because you cannot import law from a different era just like that. Today this makes no difference for abortions are legal.
What if a legal principle has unforeseen consequences which is inherently unfair? We can take this further with the following example. Here a not so clever lawyer made a will in which he said that “his farms must be divided between his grand children who are alive at his death.” As you can imagine his only daughter had one child and was with child at the time of his death which created immense problems. In other words, one child is alive and the other in his mom’s body and not born yet. So what is the problem you ask? Well, unless you are born alive you are not a human said our laws at that time. Here one is not born and thus legally not a human and thus cannot inherit. Though quite clear and logical the court felt it is inherently unfair for the deceased mentioned the word grand “children” indicating more than one. It cannot be what the law intended or so they argued. Strict application of law will result in an injustice. The unborn child will not inherit.
Now as background I must tell you that it happens often in real life that a baby is born, takes one breath and then dies. Is he now a human or not? This is important for if you are not human you have no rights under law as a human. Thus you cannot inherit or be murdered which is why someone who murdered a pregnant woman is only charged with one murder and not two. The unborn child is not a human until born and takes one breath at least.
So how do we know the baby took at least one breath? We test whether the baby was alive or stillborn by cutting his lungs in pieces and see if it drifts in water. If he took a breath it will float for air will be stuck to it. Thus he was human and all sorts of legal stuff must happen with him. Like a decent burial. Otherwise, well, let us not go into details. You can imagine what else. It is very sad.
Our courts felt the above, where only one child would inherit and the other not, was unfair and went into great detail regarding the Nasciturus Rule and Nasciturus Fiction. As such they applied the Fiction as if the child was already born and thus he inherited also. This was strange for the Fiction did not feature in our Common Law as such. So it is possible to introduce foreign law into our law if so desired but it happens very rarely. And it cannot be brought from thousands of years ago without due consideration.”
In our customary law a man must pay lobola to his wife or rather her parents before he marries her and failure to do so may lead to false charges of rape. As an example what happens in Africa regarding lobola I quote from my book Mean Streets – Life in the Apartheid Police: “ You should not think now this is normal. Ordinarily you will not find wild animals in our cities but that week we arrested a crocodile in a flat (condo in American) on the third floor of a complex. It all started when the caretaker called us to report a crocodile in a recently vacated flat. Suspecting another member playing the fool with me, I looked around to see anyone smirking but they seemed normal enough. Since a crocodile may be dangerous to the public we arrived at the flat in with our normal speed and found the local Police Station members already there. According to them the caretaker called them first and “Yes Sergeant, there are indeed a f twenty (read nine) feet long crocodile and an f angry one at that. Well maybe more f obnoxious than angry and he f refuses to consider himself under arrest. Can we kill him then sergeant, he gave us the f evil eye?”
Not believing them I looked and saw it lying on the floor and wondered what now? We could not shoot it for being potentially dangerous but on the other hand it is trespassing and the caretaker was unreasonable enough to press charges. Still feeling sad about the cheetah and not so sad about the cobra I was in no mood to murder another animal. Regrettably from any view, we were called on many times to shoot a suffering animal which was not so bad for it is a mercy killing. I remember one cat who just did not want to die but being sensitive I don’t want to talk about it.
Still, at our crocodile scene, everyone looked at me for leadership and for once I was not sure what to do. Those were the days before the late Steve Irwin became famous for catching crocodiles so I had no previous experience to fall back on even if the school’s history boffin. Of course, I knew something of crocodiles, having seen quite a few in the Caprivi where there tend to be thousands of them in the wild. One caught our family dog (named Captain) when he went for a swim. I mourned over old Captain… he never tried to bite me and I regularly requested him not to swim in the Zambezi River even if it’s hot but he would not listen and got caught.
* The Caprivi is in the north of what is known as Namibia today on the border with Zambia and Angola (with the Zambezi River separating it). At that stage it was part of South Africa.
I also saw a dead crocodile being cut open by an Army medic in a post mortem. My familiarity though was not on how to arrest one but on how to kill it. After all it is not a Zombie and can be killed by our assault rifles. That would be quite easy in fact. For interest sake that Army post mortem crocodile had the remains of a dead terrorist inside him and we all ran away when a rusted hand grenade fell out. The medic, it must be said, ran first but he was the closest to it.
I was about ten years old and recollect an Army Sergeant-Major-Uncle grabbing me by the arm whilst overtaking me to make sure I stayed far enough away as I truly wanted to collect the hand grenade as a trophy. Regrettably, they took it somewhere and exploded it without calling us kids to watch – which is communist behaviour from any viewpoint. I suppose that is where I started to view the Army with suspicious eyes. Denying a child his trophy is very sad and uncalled for to begin with.
The grown-ups also felt sad for killing an ally and they drank quite a few beers on the deceased crocodile that night at the local tennis club. I was still upset about my lost trophy so my dad gave me a Coke as comfort. Said there would be many trophies in the future the Nationalists were going on. And so it was and we learned to followed the Army patrols around and pick up their discarded equipment. I had quite a nice collection and traded with it all the time. The local SAP COIN Captain-Uncle had a fatherly chat with us school children never to pick up anything which is strange or looked military so I knew the hand grenade might be dangerous. That did not stop another commissioned officer from picking up something Chinese and dying in the subsequent explosion. From then on I made sure my trophies already exploded by hitting them with a hammer first…. something which greatly upset my dad when he caught me one day doing so. Alas, that was the end of my trophies too.
An odd thing about that school was that we had our own zoo with wild animals to take care of and a big stone (like a baseball) kept in the headmaster’s office. There are no stones in that area, everything being sand and as a special reward we could touch the stone under supervision. How I wanted to throw it around but that was not allowed to do so even when I stood first in my class (it’s kind of expected in our family but as you know I’m the black sheep). I now believe that’s where my distaste against (male) teachers began! Who breaks a promise to a child? Also started to distrust the academic side of things from that day onwards. Sure as hell did not honour the promised rewards to throw the stone around. Severe long haired liberal ways I say. Scandalous!
This reminds me of the old SAP v Army joke. Apparently a killer crocodile lived somewhere in the Caprivi and to prevent it from eating more locals the Army decided to catch it and get rid of it in a safe and gentlemanly manner as is their way. Thus an operational plan was drawn up by the General Staff in Pretoria and Special Forces jumped from sixty thousand feet to reconnoitre the crocodile for two months. Thereafter and on their detailed photographs and drawings, the Engineer Corps built a lightweight aluminium cage to catch the crocodile. Another eight hundred men from an Infantry Battalion then chased the crocodile towards the cage where it must be said they managed to catch & cage it a few months later.
Unfortunately, it seemed crocodiles are like snakes and soon another killer crocodile was discovered and this time SAP COIN insisted to solve the problem since the Army had their fun already. The orders duly arrived at the local SAP COIN Unit to arrest the crocodile within one week for they did not have time to waste with planning operations. After all, the orders were clear and concise what more is there possibly to say or explain? By next week this time they expect one killer crocodile under arrest and that is it. In consequence the SAP COIN section (ten men at the most for the matter is not that serious) sat around drinking for six days and on the seventh, after church parade, got into their Casspirs and found a much smaller iguana whom they duly arrested. They proudly displayed their suspect killer crocodile before the brass who pointed out it does not look like the killer crocodile the Army captured “being f ten feet smaller and of a different species” (just jealous if you ask me). SAP COIN patiently explained they had a fatherly talk with the iguana until it confessed to be the killer crocodile. Here is the confession signed with his right front paw print and properly witnessed under oath. Matter is closed and bye-bye they have better things to do.
This does explain the difference between the two organisations very well, but still did not help me much. I was about to call the local zoo for assistance when I remembered that they were still insulted about the cheetah counting incident (just jealous of our thorough methods and besides they did ask if we wanted to count the remainder). Then one of the local policemen remarked that his girlfriend has a farm or rather her dad has one and perhaps we could release the crocodile there if only it would come with us. This sounded to me like an excellent idea as we still suspected the zoo of losing a cheetah a few days before and really did not want to bother the Police Vet again. He was quite upset last time when he could not bring the dead cheetah back to life. The man cursed the old lady liberal in three languages as only a real policeman can. We greatly respected his efforts and could see the Dog Unit influenced him properly through the years.
* I have to mention that my American Patriot kind of likes cheetahs and was most upset with the unfortunate incident. But you know it is the fault of that old long hair liberal who walked down the stairs, Honey. Besides, it was a leopard or something. Not really a cheetah as I believed.
There were only about six policemen at the crocodile scene for it was not a serious enough to warrant more. After all, the crocodile was trapped and an experienced Flying Squad sergeant in charge. No big deal. I detailed my crew to shoot the crocodile with his R1 rifle if needed and the rest to arrest the f crocodile. They looked at me much like the Chaplains once did (see Book 1) and did nothing! These long haired liberal tendencies of Station policemen are truly amazing for it was a simple order…clear and f concise I would say. Their lack of movement made me roar like my old RSM, bless his soul.
I saw that day the power of command in a loud voice for they dived (me too, leading from the front) on the crocodile and one hell of a brawl ensued for he reacted viciously enough once over his initial surprise. After a while we had the crocodile under control and his mouth firmly closed with a discarded piece of rope we borrowed from the caretaker. Then came the hard part to get it to come with us, either by its own free will as it should, being under arrest, or by force if obnoxious. First we tried to drag it down the stairs (no one wanted to be trapped in the lift with it) like an obstinate police dog, but it being untrained in our ways, reacted rather violently and so we jumped on it again for resisting arrest. Another scuffle of note ensued but we got it under control after a few minutes.
At that time, I got the idea to pick it up like a log as we all knew something about log PT in the College if not SAP COIN who is famous for their harsh ways. But then again, it twisted and hissed and scratched us with its feet and the tail made two of the policemen sea-sick from swinging around or so they said. Apparently it is not a log even if it looked like one. Accordingly, we used our handcuffs on his feet to stop the uncalled for unpleasantness. One skinny constable had the great idea to put his torn shirt over its eyes and it seemed to calm down a bit. Yet it took a lot of curses and no doubt silent praying before we got the beast down to ground level and into the local police truck where it laid quietly since it comprehended (I told it in plain Afrikaans) that execution and handbags for the Colonel’s wife is his “f future if he keeps on f resisting arrest! We are just trying f help him. So stop this f silliness before we get fatherly and then he will f regret it before he dies which will be soon f after my last warning. We f know how to deal with communist behaviour.” Glad to tell you, him not being a long haired liberal, he listened to the voice of reason. I can also tell you crocodiles suffer from bad breath and invented the evil eye stare. Gave us one the whole time…it was rather unnerving.
Feeling proud if a bit bloody, we shook hands all around (it is an Afrikaner tradition) and reported to ROMEO: “We arrested one crocodile, age unknown, black in colour and at least eleven feet tall for trespassing and being ugly in public. By the way, we are also in need of new uniforms including pants as the crocodile resisted arrest and was fatherly talked to but now calmed down considerably.”
That caused a lot of hilarity for some reason and me to meet with our lieutenant to explain what happened. We agreed to meet at a coffee shop right across the Sterland movie theatre in the middle of town. I think it was called Black & White or something. The coffee was really good too and the place never closed meaning it was open 24 hours. Before I could be accused of being a long haired liberal and worse we handed the crocodile over to the local constable for his soon to be father in law and left the scene to explain to the much amused lieutenant that “(1) yes we did indeed arrest a f crocodile and no (2) our pants are not f wet front or rear but torn by the vicious claws (read feet) of the crocodile who (3) did not want to be f arrested and (4) resisted in fact until we (5) fatherly persuaded him f otherwise. Thank you for your kind interest sir.”
The story does not stop here for the local constable went off duty to find his girlfriend to convince her to convince her dad to take the crocodile which he left in the back of the police truck as lobola for her instead of the ten cattle her dad originally wanted. With all this on his mind he forgot to inform the new crew coming on duty about their passenger. I understand that and have much sympathy with him. Being a man and unable to think of two things at the same time explains a lot. We Africans are respectful people and negotiating lobola is a serious matter. He had other things on his mind.
* Lobola, for my overseas readers, is a traditional African custom whereby the man pays the family of his fiancée for her hand in marriage. Normally in cattle and not crocodiles, though money is also acceptable these days. If she then leaves him the cattle must be returned and this started many tribal wars which we dealt with in the rural areas. The girl may also abscond with the man and having not paid lobola her father will lay a charge of kidnapping and rape against him. We used to sit for many hours under a tree patiently discussing this with the two families before making any arrest. No women are allowed at such meetings and the men always wanted to talk to the sergeant about such matters. I often felt like King Solomon in deciding such matters. It is what policemen do in Africa.
The new crew attended a bar fight (complaint) and arrested a few aggressive drunks an hour later and loaded them in the back with the crocodile who got fairly obnoxious with the intrusion (understandably, says I). Soon a battle royal was going on between the two groups which annoyed the puzzled policemen enough to spray them with tear-gas for “f fighting and lying about a f crocodile or other monster which f attacked them in the dark. Obviously a case of f delirium tremens which they, Constables So and So by the grace of General Johan Coetzee blah blah blah without doubt know how to fix and they can f thank them later for their fatherly interest.” They did not the ungrateful disguised communists.
Before long they parked at their Station and opened the door to have their prisoners hosed down with the fire hose first for the duty sergeant did not allow dirty prisoners in his cells. As one said in shock afterwards: “A f enormous crocodile came out first and made him run for his f life with the crocodile f chasing him in circles and then into a f tree.”
I must say here we took our handcuffs back before we left so the beast could indeed walk or run if not exactly in the same direction of the constable (according to independent witnesses). His crew jumped on the vehicle’s roof and it took the Chaplain, or an angry sergeant, for there are two versions, to get him down again with solemn promises that the beast is not around. That was hours later. The drunks ran away during the chaos and were never heard of again. They left a few articles of clothing behind which we gave to an orphanage. The gossip said it had to be washed beforehand and I frequently wonder whether they were believed when they told their mates of the battle of the crocodile. Somehow I doubt it.
And our arrested reptile? Well he walked into the charge office to lay a complaint against his treatment and apparently the charge office emptied within seconds with policemen standing on desks and the counter shouting for someone to shoot the beast and at the same time look around for a camera for their lieutenant isn’t going to believe this tomorrow. Luckily he was not shot and soon re-arrested by Dog Unit members and released on the farm where he may still be. I don’t know if the trade-off in cattle realised for a girl should be worth more than one crocodile but what do I know?
* My American Patriot at this point asked how many cattle I would pay for her… I am still counting, Honey.
As you can see once you start mixing religion or customary laws with the law you are always on tract for trouble for the two simply are not mixable to start off. For instance, Muslim Law allows a man to have four wives if he can afford it and treat them all equal. But the country’s law prohibits a man from having more than one wife at the same time. How do you bring the two together? Since you cannot, the law of the country, subject to the Constitution including the Human Rights Chapters always overrides the religious laws. Thus for the purposes of this book we follow the law of the land. In other words, that what is on the law books enabled by parliament and not religious laws or customs or traditions though we touch briefly on them too. Where we deal with customary laws or Muslim marriage I will point it out to you but remember the law of the land has overriding authority. It is also necessary to understand the very basics of the laws of contract as you will deal with many contracts during your life circle. In fact, in the next chapters we will look at an engagement contract or letter and the so-called antenuptial contract or pre-nuptial in American. It is all contracts.
Basic contract law
Firstly, all parties involved must agree to what is stipulated in the contract. This is called consensus in law. Thus, it is not good enough to read it or be read to you. You have to understand the terms and conditions. Many a party to the contract simply doesn’t understand it and is too shy or ashamed or whatever to ask until he understands. There is no other way for once you sign (there are many PhDs on what a signature is) the law, being neutral, accepts and takes for granted you understood what you signed. That is why you make your mark on every page. It indicates you read and understood the terms and conditions on that page. It also places the burden of proof on you to show to the court you did not understand and you will have to explain why you signed something without understanding it. This will not only make you look foolish but is an uphill battle to prove. Do not sign what you don’t understand. It is really as simple as that.
I believe in drafting contracts as simple as possible and as short as possible which is a good rule as there are seldom come backs. Unfortunately, it is not popular for lawyers are paid for every page they produce and making it shorter attacks the bottom line. You can read about this (legal) tactic in Tricks of Trade – Memories of a Rogue Lawyer if you wish. It confuses you even more if it is longer than two pages and I worked with contracts of 2000 pages and more which is so boring that you fall asleep just looking at it.
Naturally the counter argument is that certain clauses must be there and it is to protect your client. Besides, no-one forced you to sign in the first place and (highly theoretical) you had access to your own lawyers to advise you before you signed anyway. This is all true and legally correct arguments.
Secondly, the parties must be legally capable of concluding a binding contract. Signing a contract means you must be of sound mind when you sign it. In other words, be able to understand and appreciate what is happening around you. So what happens if you are insane and you sign? Or you are drunk? Or someone points a revolver at you to make you sign? Simply, the contract is null and void as if it never happened and the parties revert back to the position they were before the contract was signed. In other words, everyone takes back what he gave. In law we call this restitutio in integrum. It must be said other things can also happen like a claim for damages. Or a claim to force you to comply with the contract but that is not possible in marriage though it used to be. There was a time in law when you could be forced to continue with the marriage even if you did not want to.
What happens if a minor enters into a contract without your permission? This happens more often than not. In my briefing on drug abuse under teenagers called The Drug Addict Pattern we deal with this question in more detail. Simply, the contract is null and void for he could not legally enter into it. Some argue that you as a parent may be able to approve and agree on it later (called ratification in law) but the point is that the contract as is, before ratification, is null and void. It has no legal consequences except for restitutio in integrum which is only fair.
The problem is that restitutio in integrum is not always possible and then damages come into it. A practical example of restitutio in integrum in this case is where the child sells his mobile phone for drug money. He had no right to sell the mobile in the first place so the buyer must return it and the child the money (which he probably spent on drugs already so you end up buying the mobile back). This is restitutio in integrum. Translated it means to go back to the way it was before the contract. As with most of law it is a fair enough system. The law is neutral.
Thirdly your contract must be legal in the sense that its purpose may not be against any statute (written law) or common law (unwritten law). Let me explain. Where two parties enter into an agreement with each other to supply and sell cocaine that would an illegal purpose and not seen as a legally binding contract. You often read about a contract killing or hit and it happens a lot. Just the other day I read in the newspapers of a lawyer who was clearly taken out. Technically it refers to ordering the killing and not a contract in writing as such even though in these things I presume (no first-hand experience) that the elements of a contract are all there. Still, it is not a legally binding contract and if the hit man fails to do the job properly he cannot be sued for breach of contract. However, this is because of the “unclean hands (Wagoner in American) principle” and not because of the lack of a legal contract. I am sure you get the general idea.
In the old days (and maybe still where you live) same sex marriages were unlawful and would have fallen under this clause and thus illegal. Even consensual sex would have been seen as indecent assault since only a woman could be raped. This is still the case in many African countries and the police take great delight in arresting foreigners for this type of thing.
Fourthly the contract must be physically possible and the performance must be determinable and possible when you sign it. Otherwise it is not enforceable.
Fifthly and lastly the formalities of the contract must abide by the law. We will look at this aspect in great detail in the chapter about marriage. For instance, the law says you need two competent witnesses. If you don’t have them your marriage is void. Always remember if the law or a contract or even I use the word “must (not maybe)” it means you have to comply to be legal. There is no scope for argument about it and it is an objective test. Did you or did you not? Simple, and if not the formalities were not followed and now you are in trouble with the law.
Basic laws of delict
Delict is the horror of the third year law student and caused more failures than any other subject! It is all about the circumstances in which one person can claim civil compensation from another for harm that has been suffered. It is also known as a “civil wrong” as this got nothing to do with criminal law but all with the word compensation. It is not rocket science (nothing in law is) but you need to understand the basics for every word has a very specific meaning. Let us first look at what the law calls “damages” and how that is differentiated for not all damages are the same.
You want compensation (usually money) to rectify the wrong done to you. Thus we find claims for what we call special damages meaning medical costs and or loss of income and the cost of repairs. These damages are easily determined since you have receipts for them. You know the doctors charged you x amount and thus your special damages are x amount. In breach of promise cases this will be costs for the reception already arranged and paid.
Then you get something called general damages which are impossible to show a receipt for as it is things like pain and suffering. It may be disfigurement where the compensation depends on your sex for the scars on a man’s face may be worth less than scars on a woman’s face. Also how big it is and how much it affects you? I suspect that under equality the man’s scars may be rated higher than used to be the case. You know! The metro man concept may not like scars.
General damages mean the loss of amenities and injury to personality which the court must put a price on. It very much depends on who you are and what was done to you and the publicity surrounding your case. An example here would be the anguish suffered by the innocent party who got left at the altar and if left under humiliating circumstances (where the bride walks out in front of everyone causing a scene) it will be rated higher.
Finally, you have damages which are pure economic harm and it must not be connected to any physical injury or damage to property. For instance, money stolen from you!
Apportionment of damages & Contributory negligence
It is just right that damages should be shared by those who are responsible for it. Thus it happens that more than one is sued and he pays the damages awarded and then sues his mates for their contribution to what he paid out. It is the plaintiff’s prerogative who he sues and if needs be a party can be joined as co-defender.
You would not believe this but sometimes the plaintiff (the one who suffered the damages) may also be negligent and thus his damages reduced. An example would be failure to wear a seatbelt. This is called contributory negligence and not a complete defence in law meaning it does not take away the liability of the other side but reduces the damages awarded. Interesting here is that it is not deducted from 100%. Let me explain. Party A may be awarded 70% damages and you would now think that Party B would be liable for 30%? You are wrong! He can also be 70%. Point is the court looks at each individual and not both together when apportioning the blame in percentages.
You cannot be held liable unless you did something which harmed the plaintiff whilst your conduct was wrongful and there must be logical connection between what you did and the harm to the plaintiff. It must also be your fault and since this can be quite difficult to explain in writing I will do so in the form of an anecdote which my professor told me years ago and it somehow stuck in my brain: “Apparently your client, Mr X, was a keen golfer and one morning he teed off at the 16th hole but as luck would have it he hooked the ball across the field and down the road where the ball hit an oncoming truck which then crashed into the sidewalk injuring Mr Z who was having his morning coffee minding his own business so to speak. Luckily Mr Z only suffered a broken leg but when loaded into the ambulance the crew forgot to tie him down or rather the bed he was on as they were feeling the effects of a late night party. Mr Z then fell out of the moving ambulance because he was not tied down and a car drove over him wounding him fatally.”
May I say the correct answer was to change Mr X’s grip on his driver slightly and then nothing of this would have happened anyway. The legal question is how far can Mr X be held liable for Mr Z’s injuries? This dear reader is the laws of delict and a nightmare it is indeed for it is inherently flexible and the truth is much stranger than fiction. However, since the law is neutral and these things been happening for thousands of years we have in law a certain way to look at the occurrences to see who is liable and how far. It is not rocket science.
Harm is very important and reasonably easy to determine. It is a factual question. Were you harmed or not? But what does harm mean? Almost anything which caused you to differ from your normal path but for the incident which took place is called harm if it hurt you in some way. Obviously an amount of gravity is expected for the law does not concern itself with trifles under the legal dictum de minimis non curat lex.
The conduct must be voluntary for anything else would be good defence in law. This includes a reflex action which is not voluntary. For instance, you touch a burning oven plate and as you jump back you hit the plaintiff in the face or step on his great toe both of which harmed him. Since this reflex act is not voluntary (even if you caused him harm by doing so) you could not control a reflex movement. We had a case where a fellow was poked in the ribs and in a reflex stabbed the deceased with a bicycle spoke to death. He was found innocent of murder. To be sure it must be a genuine reflex movement and not premeditated. This also implies you, the defendant, must not be insane and able to distinguish between right and wrong to be accountable AND (people forget this) also be able to act on what you feel. If not compos mentis when you did what you did you can never be held liable. However, you may then be locked up as criminally insane.
With conduct you must have done something or in rare cases not done something when you should have done something. For instance, if you are a policeman on duty (or not some argue) and you see a fellow policeman assaulting a prisoner and you fail to stop the abuse you are liable. In general though there is no duty on anyone to prevent harm and you don’t need to intervene as a civilian under the same circumstances. That is why it is said a policeman is never off duty even if on holiday and not at work. He is duty bound to interfere.
What about a medical man? Must he act when he sees a medical emergency in front of him? I think there is a legal duty on him to assist unless he cannot for whatever legally acceptable reason. Many differ from this viewpoint though saying he may be sued in the process especially if something goes wrong because of a lack of equipment at hand etc. As a matter of interest a hospital could not be legally sued until quite recently as it fell under what is known as charitable organisations and the law felt it was terribly unfair to sue those who are assisting you in need. Then it changed with the Lower Umfolozi War Memorial Hospital case in the 1940s. In casu the plaintiff was operated on and packed with warm water bottles afterwards which leaked causing serious burns and suffering. Since he was still drugged he did not know this until too late. That was the first case in South Africa where a hospital could be sued and today hospitals are seen as businesses and not charitable organisations.
More interestingly, mere thoughts, without any act to fulfil them or bring them to reality are not punishable in law. It is about evidence I suppose. How will you prove what I was thinking? You still need to act on it for although you may wish and dream of the day that your worst enemy is blown up it is not reality.
How far can you be held liable? The answer is called legal causation and it means not too remotely for that would be unfair. This is a test based on fairness and justice and is called the elastic test. This is much more complicated than what we describe but it comes down to a novus actus intervieniens or did something new happen which is not foreseeable and actively contributes to further harm after the original harm occurred? In our example above the failure to tie Mr Z down because the ambulance men were still drunk was not foreseeable. It was way out and no way Mr X could have known or suspected it would turn out like this.
In criminal law, they talk of the thin skull rule and this is more interesting than usual and the application differs a lot from country to country. We had a case where a fellow was given an open-handed slap and he fell against a pavement breaking his skull dying of the injuries. There was no intention to kill him and the open-handed slap usually would not have such an effect but still the charge was murder. He was found guilty of common assault and fined.
In an English case a woman was assaulted and then refused a blood transfusion which led to her death. Still the court did not see that as novus actus intervieniens and the assailant held liable for her death. This is only fair in my eyes for he caused it. If it was not for his assault the Victim would not have refused the transfusion. As a matter of interest where children are involved and the parents silly enough to refuse treatment based on their silly religious beliefs the court will always over rule them and they run a serious risk of being charged with murder or attempted murder in withholding treatment. It is abuse to say the least.
* I had a few emails from angry readers on this aspect. Legally, it has to do with the child being unable to decide for himself and the law protects the weak. I am not wrong whatever your religious beliefs are, which I respect.
Fault & Intention
This means accountability. In other words, can you be blamed in law for what happened? In law age and intellectual immaturity as well as mental disease and intoxication are excuses for liability (in general terms and up to a point only). We look at your intention when you did what you did to see if you can be held liable and the test is subjective or what was going on in your mind? What were you thinking and not so much what the actual circumstances were?
For instance, where you are under the genuine impression that your life is in danger and thus you act on it but later it comes out you were wrong to think so for actually you were not in danger. That is how the defence of self-defence is tested in law.
Wrongfulness or unlawfulness
The defendant must have done something wrongful or unlawful and that means in practical terms was what he did against the morals of the public or reasonable in the eyes of the society. It is an objective test and not subjective on what he was thinking at the time but what he did see from a distance. Conduct is usually wrongful if it causes harm to person or property which is known as the rule of thumb in delict.
Negligence or culpa
This is where something happens because of an inadequate standard of behaviour. To do this we look at the well-known reasonable man test which does not require any exceptional skills or care and how this reasonable fellow would have reacted in the same circumstances. It is partly an objective and partly a subjective concept. The reasonable person is placed in the position of the defendant to see if he would act differently. You had to reasonable foresee the possibility of harm and taken reasonable precautions against it and did not and now the harm is caused.
Dignitas & Fama
Dignitas refers to your dignity or self-respect and must be reasonably humiliating as with breach of promise if degrading in front of other people. Sexual suggestions and peeping toms or dismissal at work in humiliating terms (unnecessary and unprofessional) and any discrimination on ground of sex, colour and creed affects how you feel about yourself. This is called your dignitas or dignity and the court wants to know how far it affected you.
This is why we always advise to rather refuse to give a testimonial for a former worker than one which is negative for the lines are thin and you may cause legal troubles for yourself later on. Interestingly enough most executives I spoke with said a testimonial means absolutely nothing to them when appointing someone. I agree with that. At more senior level it is rather unimportant for your reputation will get you the job. Not what some wanker thought of you in a previous one. I also doubt the capability of an HR fellow to understand a résumé. Seems to me they have no clue on what format they want it and have even fewer ideas on how to interview senior employees.
For myself I am very sceptical about the momma’s boys who somehow ingratiate themselves to get good testimonials and always look for the one who will challenge my views for then we both grow as I know I am not always right unlike my American Patriot who is (very wisely) known to me as Mrs Always Right. Note this is not to challenge my authority which is something entirely different. Once an order is given it must be followed or we will have a fatherly talk.
Fama is where your reputation is impaired and known as defamation in law. It may be criminal (a crime) or a delict. It is caused by publication which is important for without it there is no defamation. Other people must have heard of it or you will have no claim. The more people heard the story the better your damages would be. This will be where you defame someone on Facebook for instance.
The defences against such a claim on delict will be privileged occasion where you have a public duty to publish the so-called defamatory article. Examples would be statements relating to judicial proceedings. Note however if you publish with ulterior motives this defence will not stand in law.
Secondly, the defence of truth and public benefit which is tricky for even the truth may be defamatory when not of public benefit and all material allegations must be substantially true except where crime or dishonesty is alleged where it must be the truth because it is so serious to a man’s reputation. The public must also gain some advantage and true information on public figures will always be an excellent defence unless it rakes up to the past for a man can be reformed and should not be judged forever.
The comments must be fair and falls under your right to freedom of speech. It is an objective test to see if it is an opinion or a statement of fact (when it must be correct). It must be without malice and relevant without improper motives and of public interest which is a very wide principal in law.
I know the above is confusing and I am sure you have many questions. As we go along we will discuss it in more detail and hopefully reach better understanding.
Firing your lawyers
The question arises what happens when you don’t get along with your lawyer or you feel you don’t trust him anymore. What do you do then for everyone has a horror story of lawyers turning on them and so forth which I can tell you is nonsense and a myth! Lawyers are even more bound to the law than other people and the privilege between you is only lifted if you agree to it being lifted. Not by getting rid of him or if we wish to be more direct, firing him.
This is a painful subject for me but you need to understand that if you are not happy with your lawyer you may fire him and in fact should for it is your life and the two of you better understand each other in any case and not only with divorces or antenuptial. We used to say to clients: “I will always walk out of the court. Whether you will on the other hand is an entirely different matter” and it is very true. It is you who are in trouble or have a problem.
You need to take care of number one though. Charity starts at home. If you cannot work together make an end and do so in a professional way. There is no need for unpleasantness. In some cases, it will cause hard feeling but it really should not for it is just business and the relationship between you a professional one based on contract. It will have consequences though but the consequences are all legal. I was fired on more than one occasion and every time when the client came back I refused to see him or accept his case. It is obviously a matter of pride but even more one of trust. Simply, I don’t want to go through that again and I most certainly will not trust such a client ever again. Thus I cannot help him and more importantly have no wish to do so.
Most lawyers will walk away if a breach of trust is created or he feels you are not taking his advice seriously for they tend to be honourable men. Never go to another lawyer without ending your relationship formally for that is plain offensive and if you want a second opinion then please ask your lawyer to refer you. It is the correct way to do things. He is not as thick-skinned as Hollywood makes out in Lalaland.
I can tell you the first thing good lawyers learn is never to take over another colleague’s case for a client who jumps ship every now and then is the type who will never be satisfied. We have a policy at JKLS never to take over running cases. I was bitten too many times by such clients and want nothing to do with them. No money in the world is worth the annoyance. However, sometimes this is the way it is and in such a case let the lawyer know with a phone call and be nice though you don’t need to give reasons. Just ask him to send you his final account and after you pay it retrieve your files. Once paid he must give you the complete file and withdraw as attorney of record! Your new guy will place himself on record and the case go forward.
The problem always comes in with the final account for you may feel your ex-lawyer is taking you to the cleaners and honestly he may be. To make sure, if you feel aggrieved, refer the matter to the local law society and they will look at the file to see if he charged you reasonably or not. You will be very surprised how many are hammered for this type of thing and how suddenly you get an 80% discount. In such cases always lay a charge and refuse payment.
In law, like a panel beater and others, lawyers may keep the file until paid for they did work on it. In such a case let your new lawyer write to the other side and explain the problem. They don’t really have any other choice but to wait for you to get your file back. It can take a while. Note, this not to be abused as a delaying tactic.
When fetching the files please ensure that you sign only for what is given to you. Even if it means taking two days to write down the contents and mark it as original or copy. This is very important for once you walk out of the door they will laugh at you if you then say you did not receive something.
Since I went through the mill I want to ask you not to run off to a new lawyer or the law society for something small and which could have been sorted out between you. You will cause a lifelong animosity. Civilised behaviour is expected from both sides.
“Love does not consist of gazing at each other, but in looking together in the same direction.” Antoine de Saint-Exupery
Engagement to be married or betrothal
It is rather nice to ask your better half for her hand in marriage and is known as being engaged or betrothal if she agrees. Should she refuse it is known collectively as the great escape or the day you embarrassed yourself (joke). Seriously, you cannot claim any compensation because a woman refused to marry you. And whilst you may plan the big question to the last detail the law is not as bothered with it as much as you may expect. In law it is simply an understanding between two people to get married in the future and live as man and wife in the fullest sense of the word together under one roof facing life as one.
You don’t need her parents’ permission unless she is a minor and if I may say so you better not ask me unless you want to see if you can outrun my shotgun pellets. Wait until she is of age and able to make her own decisions. If you then ask the parents, you do so out of respect only and not because the law tells you to do so. Discuss this with your fiancée to be for I find many modern women do not take kindly to the idea of being given away as an item.
There is nothing to say you need to be on your knees or have a ring ready. That is just a custom but it may be cheaper to buy the ring yourself rather than let her choose it (joking). Nothing in law says you as the man must buy the ring anyway. She can also do so if you happen to be broke.
The engagement does not need to be in writing though it sometimes is and known as an engagement letter. Not very original that is. Some have an engagement agreement which is a full contract but note an engagement contract is not the same as an antenuptial agreement which we will deal with later. It only states that the parties wish to marry in the future and deal with property issues. It cannot be enforced which is why it is seldom used and you cannot have penalty clauses in this type of contract like for instance stating if you don’t marry me by next week Wednesday you pay me 100 dollars a day penalty. That would be against the morals of the public at large. All in all, such a contract is rather useless.
Keep in mind that when I say man I also mean woman and these days same sex marriages are allowed in many parts of the world including South Africa but not under the Marriage Act. That is done under the Civil Union Act as the Marriage Act does not recognise a marriage as anything else between man and woman. Consequently, with the Civil Union Act gays and lesbians can also be legally married. Not all consider homosexuals to be animals as one African dictator put it so inelegantly recently. For myself I believe in marriage between man and woman only but I do not discriminate or judge. Their problems in life should be between them and God and I know my opinion is of no relevance. Whatever their sexual orientation they stay humans and quite nice people also. Don’t mix religion with law. It is wrong to treat some different than others without good reason.
I read that during colonial times in North America betrothal was seen as a trial marriage which would or could if you wish only go forward to marriage if a child is conceived. Honestly I am not sure about the reason for this attitude and not at all what I expected from a country as puritanical as America. It is not my idea of American public morals which I learned by reading Westerns up to the age of nine and then switched to History proper. I think that even in today’s enlightened society, this would be frowned upon.
I suspect in some countries deflowering a virgin in a trial marriage may be a crime if not a delict. Most certainly, in recent years, we had a case where a fellow married a virgin whilst knowing he is still married to another woman and he was hammered in both the civil and criminal courts. The law does not take kindly to such behaviour as it is presumed in law that a woman’s virginity is a serious matter (as it is and should be) for once broken it stays broken even if physically repaired.
It is also well-known in law that a woman with children is a lesser “catch” than one who is a virgin but I expect that this will be challenged under the equality laws. The amounts given as compensation differ drastically between the two when it comes to seduction awards. Not sure it should be on the law books anymore.
The legal consequences of being engaged
The effect of being engaged is to marry at some stage in the future with the person you are engaged to. Besides that, there is not any other legal effect which binds you to celibacy or anything in that nature. In law, all women not married is presumed to live a celibate life anyway. Since this legal dictum comes from the Romans with their well published orgies I find it ironic. Note please that being engaged does not take away a woman’s right of refusal to have sex. You have no automatic right to act like a beast. Nor do you share your estate yet and you have no special rights to his. If he dies without you in his will you will inherit nothing. Thus I always recommend changing your will and policies the moment that you become engaged. The problems arise when you break that promise to marriage without good reason. At least you cannot be forced in law to marry anyway which was the way it was up to 1838 in England. As you can imagine that led to a lot of abuse!
The legal formalities to become engaged
It is important to note that you must be sane to become engaged. Many point out that this is indeed a contradiction of terms but let us not be nasty. I believe in marriage and love and so should you. Being with your soul mate is the ultimate high and best of all, free and forever and two weeks. Obviously, someone who is drunk or in a coma cannot enter into a legal contract! Nor can someone who is feeble-minded for obvious and fair reasons. Also, persons within the prohibited degrees of relationship may not marry each other which are blood family in simple terms like brother and sister or father and daughter. As a general rule, we prohibit the direct line of ascendants to marry each other and thus they cannot be engaged either. Being of the right age is dealt with more under marriage where it differs from country to country but most are fixed at about 15 years of age for the female. In South Africa, if you are less than 15 years old and female or 18 years and male you will need the consent of the Minister of Home Affairs to marry AND your parents meaning BOTH of them. In fact, under 18 (the maturity age) means your parents must always agree and if they refuse you may approach the High Court who acts as the father of all minors for permission.
I assure you though that our courts are conservative and unless you can prove that it is in your best interests or your parents unreasonable (read very unreasonable) this will not be given willy-nilly. In case you carry on regardless the marriage may be dissolved afterwards but we will speak about that under divorce later on.
So what happens when a minor promises to marry when she is of age to do so and when she comes of age she refuses? In law all promises to marry made by minors are voidable at the option of the minor meaning she can decide if she wants to go forward with the marriage or not. Bizarrely enough a minor may sue on such a promise but may not be sued. She may even make a new promise to someone else and that is the way it will be.
Being pregnant is no reason in law or otherwise to get married but it was not always like this and in some cultures that would be enough reason for a marriage. It was a practical problem for under Roman law an illegitimate child could not inherit nor be entitled to his father’s name. This meant wars in the old days as the Kings’ illegitimate offspring decided to fight for their inheritance, often in history causing civil wars and worse. These people were called “bastards” and at one stage were seen as that even if the parents married afterwards. Under equality of the law I am glad to say this is something of the past in most countries. Unfortunately, the child and his mom may still be treated like something akin to satan by the community. We tend to throw stones quite quickly and it is very wrong.
You simply cannot in law be engaged to more than one woman at the same time or whilst you are already married. This will be in all countries which do not support bigamous relationships. In effect the second marriage or engagement is void under law but then the universal law of partnership comes in and we will look at that in some detail. It is the same as where you live together. It has far reaching effects on your estate and is known as the common law wife principle.
Why it is so important to understand what is meant with an engagement to be married?
Let me explain that getting engaged to marry is a contract in law but oddly enough it cannot be enforced if one party wants to walk away from it. Being forced to marry against your will would be against the good morals of the nation. It can never be. Thus some law professors refer to it as “semi-binding.” To marry legally both parties must be willing and able. There is nothing wrong with such a system and an example how neutral the law is.
As said there is no prescribed way in law in how to ask a woman to marry you but for long haired liberals it may involve two weeks of nonstop begging. Candle light dinners and being on your knees also helps I suppose and through the ages many traditions arose around betrothal which are not in the law books as such meaning it is not required in law to fulfil before the legal effects of an engagement comes into being. Let me explain.
A ring may be given to the woman (usually is) who wears it on her left hand fourth finger which is seen as the reserve for a wedding ring. It does not matter if it is gold or silver or even rope but the intention does. In law, if a woman accepts a ring and wear it in public on her left hand fourth finger it is very strong evidence that she agreed to be married in the future to the person who gave her the ring. If she then refuses the fiancé may claim damages from her and usually she must return the ring and that is called breach of promise or just breach. Nor does the law care if the ring has diamonds or emeralds in it. As you can see it has only evidential value on what the parties decided on.
Fascinatingly, that specific ring finger is used because our Roman forefathers believed it contained the “vein of love” which goes straight to a woman’s heart. Before them the ancient Egyptian physicians believed that the same finger has a nerve to her heart. Apparently our Western way of exchanging rings started in again in 1477 when Maximilian the First gave Mary of Burgundy a diamond ring symbolising their relationship.
* She died at the age of 25 when she fell off her horse or the horse on her. It is tragic but I understand he married again quite soon after that.
The left-hand ring finger is not the tradition in continental Europe where the right hand is seen as the place for the ring. I suppose all arteries go to the heart anyway if you want to be unromantic. I could not find anything on what happens when the woman does not have a ring finger because of accident or defect.
In other countries (Argentine apparently) a serious relationship is celebrated with a silver ring, then a gold one at the engagement and finally a diamond ring at the actual wedding.
In Nordic countries I understand that both men and women wear an engagement ring and in Brazil they switch from right hand to left hand at the wedding. Some have a separate engagement ring and wedding ring later but really it is all symbolic. None of this is of interest for the law. It is only interested in what the intention of the parties was. That is the question and bottom-line is that you don’t even need a ring to be engaged to marry. When you ask and she agrees and the two of you are legally able to marry then you are engaged. It does not give you any real rights though as with marital rights which we will look at later. For instance, a medical man would be quite within his rights to refuse to discuss any medical condition relating to your fiancé to you. If I may be brutally frank, you are not family yet!
I could not find anything in law stating that a woman is not allowed to ask a man to marry her and it can happen anytime. Not only on 29 February as is tradition in our part of the world. My research also tells me that refusal from the man meant he had to buy her twelve pairs of gloves to hide her empty (of a ring) finger or a new dress. She may choose.
She cannot sue you for refusing to marry her but we did have a thought-provoking case in Apartheid South Africa where a black man proposed to a white woman. The law in those days was not neutral and it was a crime for different race groups to have intercourse or to marry. In truth it was impossible under law to do such things. He was arrested for crimen injuria I think (criminal defamation) but I believe he was found innocent.
You must understand the Apartheid laws were not based on anything but farming principles and the Bible. You can read about it in my book Mean Streets – Life in the Apartheid Police. The argument was that the animals on a farm don’t mix with each other so why should humans? There is no way is this world that that system can be defended. It was a crime against humanity and an example of what happens when an artificial imbalance is created.
If you lose your ring it does not mean you stop being engaged. You can only legally stop being engaged if you break the engagement or with death of one or both of the partners at the same time which is called commorientes in law. We always presume the man, being bigger and stronger, took longer to die than the wife. With death the engagement stops automatically. You cannot marry a dead person because of the lack of consensus for one. Nor can you marry anything which is not human (it happens that you see an idiot “marrying” his bike or a woman her dog).
It is not possible to stop an engagement by doing nothing even though in our customary law the husband may refuse to eat his wife’s food and that may be seen as divorce. The point is the law being neutral wants to make logical deductions on your behaviour. There must be no room for doubts on your intentions. You have to show what you mean in a practical way. The same is true in reverse. If a woman takes her ring off and throws it at her fiancé it is very strong evidence that she does not wish to carry on with the engagement and the subsequent marriage. Clearly she may also just give it back or send it to him by mail or messenger. No need for unpleasantness.
Returning gifts is also strong evidence that the marriage is off. Not making any arrangements for the wedding may be indicative but note that there is no time limit on engagements before tying the knot so to speak. It may be a few hours or decades. The law simply does not prescribe a time but the dirty looks from your future mother in law may indicate that the time is near.
This was not always the case because under Roman law a widow could not legally be married within one year of her husband’s death (did not need to be actually dead – if captured as a prisoner of war he was considered dead). This was to ensure that any children to be born be born within that year so that no arguments could follow afterwards on whose children they were. This is not the case today. A widow can marry when she pleases though of course the community may frown on a hasty marriage the law does not prevent that at all. Clearly a widower could also marry whenever he could find a new wife.
As always with law no coercion is allowed. I remember a case in the 19th century where a woman was rescued by a sailor after being shipwrecked. Before he would allow her into his boat she had to agree to marry him which she did. This was not seen (correctly) as binding on her and he failed in his bid for damages when she told him afterwards to take a hike. He probably went to Australia and it caused quite a scandal.
Legal effects of breach of promise
When an engagement is broken off without good reason the lawyers refer to it as breach of promise and the “guilty” party may be sued for damages by the “innocent” party under delict. It used to be women suing men but these days you just don’t know and it does not matter anyway. If the party is aggrieved she has rights and justice must be seen.
A good reason in law to break off an engagement would be insanity, intoxication, force, intimidation, mistake, fraud and misrepresentation and the discovery of impotence, sterility, alcoholism or serious criminality on the part of the other side. This is not a closed list but what courts accepted previously as a good reason or defence meaning if the sued party can show that the above was the reason why she broke the engagement she would almost always be the victor in court. All of the above are excellent legal justifications for breach.
The reverse is also true. Where a party commits breach of promise for any reason besides the above (and what the court thinks is good enough) he will pay dearly for his actions. Marriage is a serious thing in law and not to be taken lightly.
We briefly spoke of deflowering a virgin and where one party seduced the other (usually the female but not always) under promise of marriage, she can claim damages for seduction as well as for breach of promise. Obviously this will only be where a pattern emerges or the defendant (usually the man) bragged to his friends about his “victory” and never was serious about marriage and only used the engagement as a way to get her into bed. Bragging may cost you enough to learn how to act like a gentleman next time. Certain matters should stay private unless you are a little boy needing attention. They usually get spanked in public by their moms and really are nothing to be proud of.
It can even happen where a woman is married and her husband sues the new guy but obviously that is something else called adultery. It really should not be a crime or on the law books but it is and the sentences for it harsh in Muslim countries where flogging in public (100 lashes minimum) and or stoning to death is the norm. Again this is what happens when religion and the law are mixed.
It must be understood also that you cannot be forced into a marriage just because you had a sexual relationship with someone. In law it is presumed that a married woman cannot be a virgin but note that there is absolutely no rule in law in this country to say that a marriage must be consummated before it becomes legal or that the wife must be a virgin when it is. I know it is different in other countries. This reminds me of a joke we had many years ago that one particular wild girl was almost a virgin as she only had the Army and Police on top of her.
As with any private law case the action must be taken within three years or the claim will prescribe. Once prescribed there is nothing in law which can resurrect it! It is the end of the road.
So what happens with the gifts between the parties?
Well, it can become quite complex but it is usually dealt with in three different categories.
The first is the so-called tokens of earnestness from the giver. This will include the engagement ring and must be returned to him. If not, he may sue successfully in most cases for the value or the ring. The reason is simple and found in the Roman law dictum of cessante ratione legis cessat ipsa lex which means when the reason for the law ceases, the law itself ceases. There is no more marriage thus no more ring. The best case to illustrate this point was where a child died and the mom still demanded the maintenance money for him even though he is now deceased. The court refused.
Obviously the parties may decide to keep the ring and it is always a good idea to settle this without the need of the court getting involved. As I always say in my books you have a 50/50 chance of winning in court despite the cr-p your lawyer may be telling you. Once in court you either win or you lose and those odds are way too bad for me to take a bet on. I just don’t know what will happen in court. The witness may have an off day or even your advocate. It is almost never a good idea not to settle. There are no guarantees in court but a lot in settlement because you control it.
The second category is where the gifts were made in contemplation of the forthcoming marriage between the parties themselves. Under this we see all lasting gifts of value such as a house or farm or an insurance policy or furniture. Usually when a contract is broken the law requires restitutio in integrum which means to go back to the way it was before the contract came into being. As with most of law it is a fair enough system. The law is neutral and protects both sides. Where no-one is at fault (say one party dies before marriage) the gifts are returned to each other or the estate.
However, in case where one party acted in a ghastly way he may be punished by the court and the goods not given back. It all depends on the circumstances but it is not a get rich quick scheme. Typically, the goods must be returned.
The third category deals with gifts of small value which engaged persons often give to each other as tokens of affection and they are normally kept by the receiver. It would be silly and based on the common law principle of de minimis non curat lex of not bothering the court with trifles.
The question is what happens to gifts given before the engagement. That is whilst dating. Well, it depends if the gifts were given unconditionally as out and out gifts or not. If so the receiver keeps it unless the court finds otherwise. Unconditional means without any presuppositions. However, this will not stop it from being demanded back if the giver is declared insolvent within two years of the gift given. It may then be taken back under the insolvency laws.
It often happens that third parties give gifts to the happy couple. What happens to those gifts? As is normal in law under the restitio principle it should be returned and if not the third party can sue you under the Roman law principle of condictio causa data causa non secuta. Many times this may be a cash amount or furniture or whatever as long as it is not so small that de minimis enters the fray.
My advice to you is to take your engagement seriously. Once you make the commitment you need to see it through unless something happens or you become aware of one of the defences as mentioned above which gives you good cause in law to break the engagement. When that happens return the gifts (it will anyway just bring bad luck and bad memories) and carry on with your life. A broken engagement is sad enough. You don’t need further irritation. To forgive is to forget.
Lastly the aggrieved party may sue for loss of face which is under the law of delict or torts as they say in England. This where the marriage was only a few days (hours) away and now it is called off. You must be inhumane not to understand the feelings of shame and humiliation for the innocent party and the courts do look at such cases with much sympathy. Likewise, there may have been (always are) huge costs involved for the reception and so forth. That may also be claimed with legal costs and interest from you under special damages. The court will definitely take into account the amount of publicity involved and when the breach took place and how it was done. You will pay dearly for any humiliation you caused the innocent party.
All couples have pre-marriage jitters and a nice argument the days before for the wedding for it is a stressful time. Every girl dreams of her wedding and we men don’t really understand how important that day is for we concentrate on the wedding night and honeymoon arrangements. We just don’t think about weddings the same way. So be nice and supportive to your fiancée. She is worth it.
“Love is moral even without legal marriage, but marriage is immoral without love.” Ellen Key
We have a saying in Afrikaans that “trou is nie perde koop nie” meaning it is serious business to get married and not to be taken lightly. The law agrees and we will look at all the peculiarities of getting married legally in South Africa. No doubt your own country will have its own laws on this but they are all the same and all ask the same question…
Who controls your estate afterwards and how safe are you against debts of your spouse?
It depends on which of the dispensations you get married on and the simple answer to the question is never to get married in community of property even though it is (ironically) the cheapest option and the one our fathers used. As with all things in law if you do not specifically state you don’t want to be married like that you will automatically be married in community of property. There is really nothing good to say about the in community marriage and we advise you to stay away from it. Let me explain why I say this.
In Community of Property
It comes from the common law and a joint estate is formed with the parties as joint administrators which simply mean both of you are now the owners of one estate where your combined assets are thrown into. That story of your half and his half is nonsense in this type of marriage dispensation. You are both the owners and that means all sorts of problems in law.
First there is no juristic equality under this dispensation meaning that you cannot enter into an agreement without your spouse agreeing also. Your ability to act in your own name is now gone and subjected to your spouse agreeing. We will look at this aspect in greater detail later on for it affects you in court cases and almost every contract known to man. You are in effect much worse off than before marriage. Further each party can do with property what he or she pleases but there are exceptions to this rule.
Certain items are not part of the joint estate
The items excluded from the joint estate and stay the sole property of one of the parties would be where a third party makes a gift or legacy to the party with the specific provision that is must not form part of the joint estate. This why you often read in wills and testaments that the inheritance will not form part of the joint estate as it must be said or it will be seen as part of the estate meaning the other spouse becomes the owner as well. As you can imagine it may then end up at the creditors called banks by some and your worst enemy by me.
I say again that in law if you do not deny something it may be seen as that you agree with it. Note however that this is not true in cases of rape. The fact that the Victim (woman only) does not resist is not to say she gave consent or agreed. It is one of the rare exceptions in law.
Before 1993 in South Africa, a husband became automatically the sole administrator of the joint estate meaning that he controlled everything which you can take for granted was a recipe for disaster. It may still be the case in other jurisdictions and I pity the wife for it is designed to lead to abuse. In practical terms the wife could not even accept an inheritance without her husband agreeing also and then, if not excluded, gain the right to dispose of that inheritance as he pleases. The wife was in fact little more than a breeding animal as far as the law was concerned but she could not be abused at will as some think. In that at least she had some protection as we will discuss a bit further on.
What happens with monetary gifts or the proceeds of gifts sold?
So what happens with a monetary gift or if a gift which is sold for money? You know at a wedding you often receive unwanted gifts and many couples sell them on afterwards. The money stays the property of the spouse given to originally but when invested the proceeds go to the joint estate unless expressly prohibited by the giver.
What about wedding gifts between the parties to each other?
Generally, all engagement and wedding gifts given by a husband to his wife do not form part of the joint estate. It is to be used and done with as each pleases. This is only logical for it was given without reserve and would defeat its purpose if it reverts back to the giver at some stage. Just does not make sense.
Morning gifts & Morganatic Marriages
This is a culture thing and not the law here and thus more interesting. In some European countries it is the accepted way to give gifts on the first morning to each other but it is just a tradition and not enforceable by law. In fact, as we saw, Roman law prohibited the man from buying his wife’s affections. There is no such thing in South African and most African jurisdictions as we don’t have royalty around and the ones who claim to be are not taken seriously.
In addition, even if they are around we don’t give a (you know what) if you saw Gone with the Wind about their titles. It is simply unimportant in a democratic Republic though our traditional leaders are treated with a lot of respect. However, they are not royalty as in the European sense of the word. They never make the tabloids for a sincere lack of interest in them.
In Germanic law the “morning gift” came into being which the wife may or may not be able to dispose of as she pleases depending on the exact arrangement between her and the giver. She might lose it if she re-marries which is something we find in pension pay-outs too and is inherently wrong. What does it matter if she marries again or not I ask? The pension should be paid regardless. I am sure someone smart will sort this out in equality courts one day. A pension is earned, not a gift.
A female colleague of mine said the morning gift smacks of prostitution to her since the gift is made after the first night together but historically this was to take care of the children. You must keep in mind that though the children were considered legitimate but they could not inherit their fathers’ titles and property. This is unfair and no doubt they were treated unjustly (differently) from the rest. Hence today this type of marriage or rather the consequences as set out above is not legally enforced which is good. These days the children will be treated as any other kids on the laws of succession.
The point is that the morning gift came into being to provide for them and the wife. The law is always neutral (well it should be) and tries to be fair to all concerned. To ensure this another legal provision for widowhood was jointure. Here the property (land most often) would be held in joint tenancy so that it would automatically go to the widow on her husband’s death.
Now we all know that love is blind and that the god of love shoots its arrows to people who don’t fit together well or so the saying goes. Consequently, it happened that a noble man (or woman) married a commoner and that is called a morganatic marriage in case your teacher failed you. A recent example (I guess) would be the latest English royal couple where the woman was apparently acknowledged as a commoner. This type of wedding is known as a “left handed marriage” since the groom traditionally (non-morganatic) held his bride’s right hand with his left hand instead of his right. This reverses the process. Here he will hold her left hand with his right hand. Thus he is on the wrong side of where he should be in a “normal” marriage. Honestly I never saw this with my own eyes before but perhaps you have.
By now you would have gathered that I am sincerely not interested in anything to do with royals and make a point not to read about them and to switch channels if I see them. We rejected these individuals officially back in 1961 (before I was born) when we became a Republic and so did most of Africa though some may pay lip service for third world aid. Truth to be told we (meaning the Afrikaner) never liked them before that and fought wars to get them out of our lives. I wonder nonetheless if one of my readers knows on which side the groom was during that marriage. It would be interesting to see if they followed this tradition or not and if they did we now know why.
I can tell you I am very sure where I stood with my American Patriot. Most definitely not on the wrong side for I see that as a grave insult to the bride. No way can I accept a fellow is superior just because mommy and daddy is rich or titled or whatever. It is unnatural and plain disrespectful. And why should the husband be treated as more important than the wife? This really does not make sense to me though I do believe the man is the head of the family. Leadership is expected from a man. It his birth right and comes naturally to him!
Traditionally, neither the bride nor any children born from such a marriage had a claim on the bridegroom’s succession rights, titles or property when married under this dispensation which I am sure you will agree is inherently unfair and plain silly. It probably started a few wars too.
Luckily this is unknown in progressive countries who know that tradition is also subjected to a constitution based on fairness and may I say it, human rights. The very idea of bowing to “royals” is laughable to the rest of the world but anyway. What do I know? Each to his own!
My English clients take their royals very seriously and tradition is certainly a great thing. The value thereof cannot be denied. I say the British Army is still the best in the world because of the Regimental tradition they follow. That I saw for myself and if you want to argue this point let us start by asking when last they lost a war. Nothing in recent times which I know of and I mean a war, not the odd battle. Probably the American Revolution for they won the one of 1812 when they burned the White House.
* “Scandalous and plain wrong Honey” says my American Patriot. “They were kicked out unceremoniously afterwards and never came back either except to beg for assistance now and then! Those Yanks (she is a Southern Lady) made a strategic withdrawal in regard to the White House burning incident and Tony Blair apologised for it to President Bush 43!” As you know she is known far and wide as Mrs Always Right so res ipsa loquitur and pass the coffee dear.
It is wrong to say royals cannot be romantic and all their marriages were arranged. You will remember in recent history that King Edward 8th had to abdicate to marry an American woman in the 1930s and she claimed no estates from him as far as I know. There were of course no children born from that marriage and a lot of questions asked about his alleged sympathy’s towards Nazi Germany which is said were because of her influence. Somehow I don’t believe that and personally I believe he was treated appallingly. It was the greatest love story of the century or should be.
* Which proves beyond doubt one American woman is worth an Empire says I much to my American Patriot’s liking. We can learn a lot from history.
So what happens if husband and wife sue each other and costs are awarded against the loser?
As you know in law, if you lose a civil case you end up paying the legal costs of the winning party. As with all things in law it had a good motive as it tried to limit spurious claims and in some cases (it never happens in real life) the attorney may be ordered to pay the wasted costs out of his own pocket. Working on contingency is legally possible but not done as much as in other countries. Typically, a “no win no fee” arrangement is in very specific claims against the road accident fund which unless your claim is fraudulent you cannot lose anyway. It is very easy money. The other “no win no fee” fee scheme is with debt collection where they take up to 10 percent of each payment received as commission. It is a numbers game or a waste of time.
The attempt to reduce the court case load did not work by the way. The number of claims is growing rapidly every year and your chances of going to court within 3 to 5 years since summons (if defended properly) is almost zero.
Consequently, if the two former love birds sue each other it would be wrong to use the joint estate to pay the awarded costs and thus it must be paid out of the unsuccessful partner’s separate estate or his part of the estate after the divorce. The problem as always in law that there must be money from which to pay or it is an impractical exercise from any viewpoint. This money then becomes the separate property of the winning partner. I think you all will agree that this is the way it should be otherwise you will pay half of your own costs even if you win.
If either partner sues a third party for non-matrimonial damages, such as for defamation or for personal injury, any money awarded as a result becomes the separate property of that partner and does not fall into the joint estate. This is also fair enough for the one who suffered the damages is the one who should be rewarded. Not the non-suffering one who had nothing to do with the case.
It happens that one party inflicts bodily injury on the other and is sued for compensation. Such awards must be paid out of the half-share of the guilty spouse and in so far as it does not cover the sum then out of the joint estate until an adjustment can be made on dissolution of the marriage. The reason for this is to take care of the medical costs for the injured one. It is important enough to override the usual dispensation. Logically the damages recovered by the injured spouse become that partner’s separate property.
What about the debts of the spouses?
Well, as you know there is one joint estate now. All the assets of both partners were thrown into this one joint estate and up to 1993 the husband had full control over it. Thus, and this is the biggest problem with this dispensation, all the debts owed by either of them must be paid out of the joint estate. This is even for debts incurred before the marriage. It is silly (my word for stupid). In plain English you take over your entire spouse’s debts and she yours. Many times when (not if) things go wrong in business or you lose your job the hounds from hell (debt collectors) will then come after your wife. You can read about the law and debt in my book Your Worst Enemy where we discuss in great detail your legal rights against the banksters and other creditors. Of all my books that is probably the one you should read and pass on to your mates where needed.
What does joint administration of the joint estate mean?
You will remember that since 1993 the husband is not in charge of the estate alone anymore. Both spouses are the joint administrators which means within reason (safeguards) they can do what they please with it. With the years this freedom became limited and for now the situation is as follows: You need written consent (as always without being coerced) from each other before you sell or give away or mortgage a piece of land. This will include granting servitude rights like a private road across the property to a third party for it influences its value. With public roads you have no choice for the government is able to expropriate the land to build the road which is for the benefit of all. The only problem is reaching a good price for the land and the cause of much anger. In fact, in many countries the government don’t need to pay you one dollar.
You cannot draw money from the other spouse’s account without permission. Of course, in today’s world with ATM’s this is not as pertinent as it used to be when you still had to wait in the queue to draw money. Many spouses have access to each other’s accounts but note this is a private arrangement between the spouses and strictly not according to the law if not given permission in writing.
You cannot borrow money or create debt alone. Fair enough you say but this is very bad for it also means you then become the co-principal debtor and liable for the new debts of your spouse. Really it is everything you don’t want.
Nor are you legally able to sell investments meaning shares, stocks, insurance policies and fixed deposits. Your spouse must agree also for you can do nothing legally on your own. Additionally, anything of value like jewellery or coins or stamps or art falls under investments if (and only if) it is held as investments.
To complicate matters further the law understands that sometimes the spouse must do the above in the natural cause of your business and then you don’t need the spouse’s permission. As you can imagine this led to many court cases through the years and the courts look closely at what business he is involved in.
Then we have other instances where you do not need consent in writing. Note please this does not mean no consent. You still need consent but not in writing. This may be to sell off furniture or other effects excluding the above mentioned of course. Or to receive money due for salary, royalties, pension or other professional services rendered in business. Practically speaking, your boss doesn’t need your husband’s permission to pay you your salary for your professional services rendered. Mind, the word professional services created a lot of guffaws under us students when still at law school. As an embarrassed professor (he was old school, wonderful brain) explained that since prostitution is illegal to start with (not in all countries it isn’t, Australia I think has legalised the profession a long time ago) the other spouse could not agree legally to receive fees on such services anyway. Simply it means money earned legally including things like insurance pay outs and income derived from renting of separate property which does not form part of the joint estate.
You are allowed to make small donations which will not prejudice the joint estate. What is reasonable will depend on how much money you have. There are no fixed limitations because of this. For some couples 100K is nothing. For others it may be a fortune. It is all about not prejudicing the other spouse. In practise this may come down to expensive (or not) gifts to the mistress.
The wife could also before the change took place buy necessities for the house which lead to us saying she was in charge of the kitchen only. In such cases she could even get credit but as you can imagine it was a very narrow view on what necessities are. All in all, not a good place to be.
When a husband defrauds his wife
As you know I am a man who believes in love and very much in love with my American Patriot. Accordingly, it grieves me to admit that through the ages many men tried (with varying degrees of success) to defraud their wives. Since the law is neutral and protects both sides it stepped in and below is a short discussion on such disgusting behaviour. What would the fraud be? Well, hiding of assets is one. Another would be to be reckless with the joint estate or gambling it away. Anything meant to be to detriment of the estate falls under this topic. You would not believe what a man can get up to if given the legal power (opportunity) to do so. Not all men are honourable and some are shysters.
Because it is only fair a husband who defrauds his wife while dealing with the joint estate most probably will be ordered to make good the loss out of his half-share. Where needed his wife can apply for an interdict to stop him from dealing with the joint estate at any High Court and usually these orders will divide the joint estate. As is the norm the costs for this will be paid from the half-share of the unsuccessful partner. In real life this did not happen often enough. Many women were too ashamed to admit to such things which are indeed sad. The law is neutral and unless you invoke it, it is seldom able to act unilaterally.
Marrying in community of property takes away your right to act on your own as you did before your marriage and the spouse needs written permission (consent) from the other spouse to start or defend legal action against a third party (obviously not against each other). The reason is it affects the join estate.
The exceptions to this rule is where the action is regarding a separate property not part of the joint estate and for recovery of damages as in defamation under the laws of delict. This is not a claim for financial loss where consent is needed (it affects the joint estate). Once again where the matter involves the spouse’s business transactions in the normal course of his duties consent is not required.
So what happens when consent is refused?
You know some men are not exactly the alpha male type and though they tend to be dominated by their wives it happens that a spouse (almost always the man) refuses to give consent for the legal case as discussed above. This led to the law allowing the refused spouse to apply directly to court for an order dispensing consent. How this would affect the harmony of the marriage I don’t know but I imagine a few choice words will be exchanged.
Note that the court will only grant such a request if the other spouse is unreasonable to withhold his consent or where it is necessary for the protection of the joint estate that the order be granted. I assure you that you will need the professionals to assist you with such a motion.
What if the spouse acts without consent?
I am sure you will understand how dangerous this is to the third party who in good faith entered into a contract with the spouse just to hear later that he (or she) did not obtained consent to do so beforehand. Under normal laws of contracts this will lead to restitio as we discussed before where both parties are placed in the position they were before the transaction since one of the fundamental elements (formalities in law) was not abide to. Most certainly this aspect was widely abused when thing went wrong (the law almost never gets involved when things are not going wrong) and this lack of consent used (read abused) to declare the contract void.
As with companies, the law takes for granted that permission was obtained unless the third party reasonably should have known that it was not obtained! It is presumed in law that the spouse had consent and the contract will be scrutinized to see what was signed in what capacity. With a woman it is logical to deduct she is married, divorced or widowed if she signs as Mrs So and So and the question should then be asked “how are you married” as most contracts do if drafted by someone more competent than usual. If something goes wrong the offending spouse will suffer the loss from his part of the joint estate.
Dividing the joint estate
It occurs in real life that one of the spouses acts in such a way that the interests of the other will be seriously jeopardised if not stopped and in such cases the court may (on application or motion) order the estate to be divided into equal shares or whatever the court thinks is fair. It may even change the in community dispensation to one of out of community but this will entail notice to all creditors who most probably will object or want other security for the debts which is only fair and reasonable. Everyone in this world looks out for number one and you can read that in my book Your Worst Enemy where I say pay yourself first.
Charity does start at home.
Many a client asked me what they should do after they got themselves married in community and my answer is always get divorced and marry again. Changing a marriage dispensation is just too much hassle to get through court. Funny enough it is almost always the men who then wonders aloud if his wife will marry him again and want all sorts of promises from her to do so. These promises mean nothing in law being against the good morals of the public and unenforceable. Tough luck mate! Why are you wondering in the first place?
Keep in mind as a married man you cannot be legally betrothed at the same time so if she refuses it is not breach of promise as we discussed somewhere before. You better hope she marries you again for she cannot be forced against her will as you also know. Seriously, most of the objections are of a religious nature which I respect and then we burn money to change it via the courts. It is a difficult process. Time consuming and expensive!
What rights do you have as a married person in law?
This is not about the financial consequences as such but your rights as a human being now that you are married regarding your spouse. Keep in mind please this is for all dispensations and not only where you are married in community of property. It comes naturally to you as spouse and you don’t need to apply for it or register it or anything like that.
Firstly, it gives the spouses access to their partners bodies which is legalese for sex. Law is boring for sane people but it does recognise that sex is an integral part of marriage and this brings us to the question if it is possible to rape your wife? The short answer is yes and in certain countries includes even consensual anal sex. In the old days raping your wife was not legally possible and unquestionably it led to a lot of abuse. These days, consent is king. If your wife says no then sir, it is no. Forcing yourself on her is rape and you will be treated as a rapist whether you are married to her or not. There is really nothing complex about this. No means no as it should be.
The court will also look at your relationship at the time. When in a divorce or estranged from each other (in the old days called divorced from bed and table) your rights as husband does not stop automatically but you cannot force yourself on anyone. I had cases where the couple got together again and then the woman cries rape and my client arrested which is disgraceful behaviour.
My advice is to ensure that consent is always involved and remember a drunk or drugged person can never give consent legally. Nor can anyone who is asleep as also happened. I said it before but will repeat that it is common human decency not to infect your loved one and you must inform her of any diseases you suffer from before the marriage or you have sex. In this regard I must also clear a few myths. Having sex with a virgin cannot heal AIDS as our witch doctors are telling everyone stupid enough to listen in Africa. The CIA or other white men did not create AIDS to kill the black man as is the rumour in Africa since the 1980s. Such thinking is plain irresponsible and silly. Much better ways exist to kill humans with bacterial warfare. The last time that was used in war was by the English Army against some indigenous American Indians 300 plus years ago and the weapon a blanket infected with small pox. They also tested anthrax at one Winston Churchill’s persistence on a remote Scottish island much more recently during World War Two. It is still abandoned and will be for hundreds or years to come. This is why I admire the English so much. They are utterly ruthless when needed and have a sense of fairness which is frankly astonishing. You can read about the sense of fairness under the English in my book Mean Streets – Life in the Apartheid Police where I explain how Apartheid could happen legally in a God fearing country:
“… The Nationalists came to power. Simple as that. They created Apartheid, and the question is how? From a purely legal perspective the answer is almost as satisfying as the question of how the Jewish Holocaust became legalised in Nazi Germany. What happened to the checks and balances designed to prevent such a horrific abuse of State power? The answer is simple. They had never been created because the political system of the Union of South Africa (founded in 1910 after the Boer War), which had created the SAP in 1913, is known as the Westminster System. In practice this means that any law declared by parliament (as long as the correct procedures were followed) becomes the law of the land when the Prime Minister (and later the President) signs it into law. There were no human rights within a constitution restraining the government. Parliaments were sovereign (above the law since they were the law) in order to govern efficiently. If you are from my generation or older, you might remember the term Parliamentary Sovereignty. It is an extremely dangerous concept, and because of the Afrikaner mentality (for lack of a better word) it exploded into Apartheid. Similar things did not happen in the forty-seven other countries using the system. Why not? Once again we come back to the prevailing racist mentality that the white man always knows better. And with the inbuilt sense of justice that every Englishman, it seems, is born with, the lack of checks and balances (human rights charters) had never been a problem in England.
As long as the Queen is happy the Englishman was pretty fair in his worldview, which is often abused these days, but that’s another whole topic. Regrettably our Nationalists soon proved to the world that they had no inbuilt sense of fairness, especially toward their black servants who had protested: “Give me the right to vote on the basis of one man one vote since I am also born here and lived here all my life – in fact I am a South African even if I am black.” But the Afrikaner flatly refused and tried all sorts of other nonsense like homelands and oppressive laws to keep themselves in power. They had wonderful excuses proclaiming why they were right and the rest of the world wrong, but it all came down to them wanting to maintain political power above all else. It was shameful to say the least.
As noted earlier, one man one vote would, in effect, have been an abdication of political power because of the numerical differences between the races (a result of the British concentration camps according to my own theory), and it was simply not allowed until 1994 when traditional voting took place and every group voted for itself. Tribe for tribe, exactly as the Nationalists had feared. Strangely enough, the same thing happened recently in America with Mr. Obama from what I have read in newspapers, which stunned many but not us who saw it coming. Sadly, I do not think this will ever change, but what do I know. History always repeats itself. So where did this leave the SAP?
We now had a recipe for disaster. The Nationalists went completely nuts after 1948, passing hundreds of laws collectively called the Apartheid laws. Being direct men or perhaps arrogant is a better word, and they made no attempt to hide anything. From then on absolutely everything would be divided into black and white or according to race. I quite often travelled overseas and we seemed to be the only country where people think racially. Others do not care and cannot be bothered whether you are pink or blue. It is unnatural to think along racial terms, and nature has its own way of making something unnatural natural again. They are called the Rules of Natural Justice, and can be easily explained. For example: take two lakes filled with water but at different levels. They will always seek equilibrium, for it is the inviolable law of nature to equalize. The same happens when human beings begin thinking that a certain colour is better than the other for no other reason than colour. This type of thinking is called “racism” which is something truly evil.
The Nationalists could afford their arrogance because the SAP was there to enforce all of their laws. Whether the laws were fair or not, it made no difference. The SAP would maintain law and order come what may. Accordingly, the Nationalists knew they could create any law with the secure knowledge that they would be enforced by a superbly trained police force subjected to its political masters. And we know the consequences of that. History reveals very clearly that the SAP was dishonoured into the instrument of terror it subsequently became.
What is the difference between being direct and utter stupidity, I wonder? What is the difference between arrogance and abuse of power? Ask the Nationalists! Perhaps they have the answer for you. I sure don’t. I look back now and shake my head. It is a wonder that educated God fearing men could be that wrong and stay on that wrong path for so many years. And even when a low-intensity civil war broke out, it seemed to be of no real concern to them! It did not matter because their own horrible children were at university or some other safe place, while other parents’ children were sought to maintain law and order in the danger zones. And we would betray Rhodesia for a few crumbs from England and other African despots and even feel good about it! We would invade Angola with a totally unprepared Army! Black leaders played Prime Minister John Vorster like a badly tuned violin in my view (and yes, it is easy when looking back, I admit so). They asked him to invade, and he did and we reaped the benefits that they had hoped. No one said thank you, and South Africa became the pariah of the world overnight. How pathetically naïve they were….”
What about the first night then?
I am asked sometimes if a marriage must be consummated to be lawful and the answer is no. Not in our laws but it may be different where you are. I know that Germanic law has a different opinion on this. Nor does your bride need to be a virgin or you for that matter or you need to have sex on the first night (wedding night). It has nothing to do with the formalities of marriage and is only tradition or culture. In countries where this is still enforced it created other problems as we will see later on.
Legally you are married the moment that the marriage officer declares you husband and wife. What happens afterwards in bed is irrelevant but sex is a big deal in marriage. Logically a blanket refusal to intercourse is a ground for divorce. So is impotency but that would make the marriage voidable. This brings us to the question if the man should reveal that he cannot perform, perhaps because of a war wound or other reasons, before marriage? The answer is yes. Some of course uses this as an excuse to make sure before the marriage which is sort of funny but not per se illegal if it is consensual.
Secondly, a spouse is always entitled to visit his wife when in hospital or in jail. That can never be refused but of course controlled with visiting hours etc. As such a doctor is able to explain what her medical condition is without breaking patient privilege to a husband. He can insist to know and give permission for operations or medical treatment on her behalf if she cannot. Note this is not applicable on legal privilege where the lawyer may refuse flatly and probably will do so. In medical matters as said you can insist on your rights to know depending also on what the patient wants. Consequently, you may also be allowed (if the medical men agree in the interest of their patient) to be in the same room during delivery or any other procedure including examinations. Remember those words “in the interests of the patient” for it gives the medical men wide powers of discretion which no court will easily overrule. If they chase you out you stay out in general terms.
The spouse is also entitled to the physical remains after death for a decent burial after the authorities are finished with it. We see this often on television where the wife waits for her soldier husband coming home in a casket covered by the flag. Legally the remains must be handed over first to the spouse and if not available a child (of age obviously) and then the parents (if alive). This is your legal right as remaining spouse as sad as it is. Sometimes it even happens after divorce as you will remember Prince Charles waiting to take possession of Diana’s remains. In this country, by the way, he would have been chased away and her father or elder brother given the remains. Divorce takes away the marital rights.
Receiving the body is the last honour a spouse can give the deceased and healing in a way.
Thirdly, when incapacitated a spouse usually (depends jurisdiction) takes over his wife’s affairs on her behalf until she is healthy again. The court will not easily refuse this right or give it to strangers. I have seen (and it is heart-breaking) old couples going through this type of thing. Let me tell you, they stand by each other no matter what. Gives me hope for the future as we can learn from the past. I love talking to old folk. They are exceedingly wise.
Fourthly, your spouse may take your last name or not. It is her choice and nothing forces her in law to do so. Many don’t for professional reasons. Nothing prevents a man to take his wife’s last name but remember the morganatic marriage exceptions we discuss somewhere above.
Fifthly, you may now call your new in law parent’s mom and dad but that is tradition and not law. Whatever works for you! Some are known to be called in much less affectionate terms and yes, if your mother in law destroys your marriage you can sue her theoretically under delict as with any other person who does so. It seldom happens for obvious reasons.
Sixthly, you as parent become a legal guardian for the child born from your marriage. Note this is not the same for prior marriage children but we speak about that in the next paragraph below.
The rights of a stepdad or stepmother in marriage
I cannot tell you how many times my clients got into trouble because of this. Many are older than me and in their second or third marriages. As is usual there are almost always stepchildren involved and the question is what rights does the step parent has? The short answer is almost nothing but you also have no duties or obligations either. The child is in effect nothing of you and I know it sounds cruel but that is the way it is. You are not allowed to spank him or any other child including your own in this country and many other jurisdictions. If you do you will be treated like a criminal and your religious beliefs will not save you. The law always overrides religious beliefs which are a good thing as long as it is decent and fair.
Where spanking of children is allowed you are not the parent and not allowed to do so unless the parent gives you permission. That does not mean going overboard and causing lasting injury. It is not allowed in this country by the way but no problem in the rest of Africa.
Nor does it give you the right to strip search a child or anything which may be seen as an unreasonable invasion of privacy or indecent behaviour. If you have time I recommend you to read my briefing on drug abuse called The Drug Addict Pattern which discusses this aspect in greater detail. You do have rights as a parent to search the child’s room and body if needs be for drugs or evidence of drug use but understandably within the rules of decency as we discussed there.
There is no legal duty on you to feed or house the step child but if you don’t you will lose your spouse for no parent loves his spouse more than his child. However, and this is important, you cannot allow a child to be hungry and destitute in your home. That would be against the Children Act and common decency. So you have to provide at least the basics if they live with you. You cannot be forced to pay for the child’s college education and when divorced for maintenance for the child. Clearly this may be different where you live and I am talking in general terms now.
There are two things in the world which never fails to surprise me and one is the silly names children are given by irresponsible (to say the least) parents. It may surprise you but many countries have laws in what a child can be named and usually it will be refused (not registered and thus not on the birth certificate etc.) if it is obscene or offensive. Or if too long for we had some idiots who named their child after their favourite sport team and think it is very funny. Nor may it contain symbols without any phonetic significance. It may also not be a rank or title or be contrary to public interest by which most dictator names would be refused. Most definitely a swearword would be unacceptable.
There is nothing in law to say that the child must follow his dad’s surname or that he needs a middle name. Nor are you limited to names unless you are ridiculous. Typically, the limit is about four for then the form runs out of space. I know of feminists (good folk sometimes) who insisted on the child having a double barrel name with her surname and the fathers which is fine. In the old days, an illegitimate child would have only his mother’s name but that is not the case anymore if the parties decide otherwise.
From listening to my American Patriot I gather that a middle name is almost sine qua non and you can name your child almost anything in her tribe. That is not the case in Germany where you must tell the gender of the child by the first name and it must not harm the child later in life. The authorities may refuse your name and on appeal refuse again. So it is an expensive exercise if you don’t have ears and keep on trying your luck.
Denmark I understand has a list of 7000 approved names and very strict rules against idiotic parents who go outside the list. The same with Iceland who looks out for potential embarrassment for the child and will not approve any name not written in the Icelandic alphabet. I know that the long haired liberals will feel this is unjustified and blah blah blah on human rights but really, if the name will condemn your child to a life of misery and humiliation how can you not expect the law to stop you? Be sensible.
The rule of thumb is a legal myth
Why any man would want to offer violence to his wife I would not know and it is one of those things which make me reach for my shotgun. Interestingly though the so-called “rule of the thumb” never existed in English or any other law I know of. You would have heard that it is often said that a husband could legally give his wife a good walloping (another word would be flogging) as long as he does not use a stick or cane thicker than his thumb. The myth (for that is what it is) does not say how many strokes or where on the body which is strange for the law is usually very specific on such matters. For instance, in the days when women were still flogged they were very specific that a pregnant woman may not be flogged until she delivered. Nor may the child be used as a human shield and the lashes only on the back or buttocks depending what was used. Reversely floggings had to be done as quickly after the sentencing as possible to prevent mental anguish (very ironic I say). It was reduced from the cat of nine tails, used up to 1996 in Jamaica I hear, to a cane (light or heavy) in this country because that “reduced the punishment to school boy level” and will not “leave scars which criminals can be proud of.”
A man above the age of 30 years and political prisoners could not be flogged. Yeah, amazing world we live in and it is horrifying when you read these things in the elegant legal English of the old law books. A different time I suppose for I mean no disrespect towards the old Judges and lawyers. I am very much against this type of thing and frequently had to watch judicial floggings in my time in the Police. You can read about it in my book Mean Streets – Life in the Apartheid Police. I can tell you, it is not nice and I don’t care to see it again. Luckily and rightfully it is now written out of our law books but of course not in all countries.
Whilst true that under Charles the Second a husband could give his wife “moderate correction” that meant only to confinement to his house and in fact unambiguously excluded the right of a beating with or without a stick thinner than his thumb. Do not suppose now as some clever idiot once asked me if this means she could be walloped with a thicker stick then? No. She could not be walloped at all. It is a legal myth and never existed in law to start with.
Naturally different laws existed for slaves for slaves were not seen as humans but as possessions like a wagon or bale of cotton and thus legally treated like an animal. Since they also could be (and were) used to work for the South during the American Civil War the Union declared run-away slaves as contraband and refused to hand them back to their owners in the South as they should have if following the usual rules of war of the time. Now that I can tell you was exceedingly clever and I bow to the general who thought it out. Major General Benjamin Butler, commander at Fort Munroe in Virginia, that was in case your history teacher failed you. The thing is President Lincoln was unimpressed for it also strengthened the case for secession in law by the State which he denied in law and kept on denying. To do otherwise would have been to acknowledge the right of States to withdraw from the Union which they joined freely. That would have acknowledged the existence of the Confederacy as a separate country. It is rather complicated but the fact is the slaves were kept and then freed and then given the vote. I say this often to my American Patriot and in my other books that I have yet to read more honourable accounts of warfare and men in my life. I am serious when I say this and keep in mind I am not an American with patriotic notions on Union Generals. Moreover, my American Patriot is a Southern Lady by birth.
I read many hundreds of military history books in my life and never did I find that much honour as in those Civil War Generals. They were young men too in case your history teacher failed to inform you. Generals Sherman and Grant were in their early forties when they became famous. Generals Schofield, (Stonewall) Jackson and JEB Stuart in their thirties which makes their actions so much more remarkable in my view! They deserved our respect for they were men amongst men and we can learn a lot from the past. I often say I would rather be a history professor than a legal one (not that I claim to be either). Law is boring as a subject for sane people as you know.
From the old case law, it is obvious that this rule, non-existent as it was then and now, caused many men to beat their wives and end up in court futilely pleading the rule of thumb as an excuse (legal defence). Way back in 1641 the Massachusetts Bay colonists stated “Every married woman shall be free from bodily correction or stripes by her husband, unless it be in his own defence from her assault.” Fair enough I am sure you will agree. Man has the right to self-defence. This does not mean that an unmarried woman who is not a slave may be beaten now for the obvious reason that if she is not married the man cannot be her husband with marital rights based on a non-existent legal myth.
The same is true in North Carolina (1874) where the Judges said “We assume that the old doctrine that a husband had the right to whip his wife, provided that he used a switch no larger than his thumb, is not the law in North Carolina.”
I spoke to an old (long retired) Army Colonel the other day when he celebrated his 50th wedding anniversary and I asked what his secret to such a long marriage was. Apparently “he thought often of murder but never divorce.” Yes, it is a joke. There is nothing nicer in life than to see an old couple walking hand in hand and he is indeed a gentleman of the old school. It shows commitment though.
A man who does not open the door for his wife is a communist and long haired liberal in my eyes. And a woman is always entitled to be late and to be waited on. That is her birth right being the improved model between the sexes. Have you noticed that in nature it is the lioness that does the most killing? Not the lion who is only good at roaring and making cubs.
Assaulting your wife will lead to divorce (I hope) and jail time (I sincerely hope). Stop such nonsense and if you are the assaulted one do something about it. The law exists to protect you. Whatever he may think he has absolutely no legal or moral right to such behaviour. There is no excuse which you can think of which will change my opinion. Such behaviour is utterly disgusting and communistic.
Corporal Punishment Agreements / Spanking Agreements
Remember we were not talking of sexual games above or alternative lifestyles above but illegal thrashings. That may or may not be legal depending on where you live and what happens. Obviously only consenting adults are able to enter into such agreements and not a child or minor. However, I have legal concerns for that nice agreement which we see on the Internet between a child and his parents for a spanking is absolutely cr-p under the law. The child can never enter legally in such a contract and if spanking is prohibited by law in your country there is absolutely no way in this world how you can override it by agreement. Even if genuine consent was given it is still ab initio unlawful and will not save you in court.
Yes, I know it certain countries an adult or parent has the right to punish their children in a moderate corporal way. You better be sure of that where you live or you may find yourself under arrest as a child abuser. Keep in mind the word “moderate” for the law means moderate excluding lasting damage. That story of children abusers having a hard time in jail is very true. Mr Criminal may be a criminal but they draw the line at child abuse and look down on the abuser. I was tempted to say they look down from behind on the abuser but I am sure you get my drift. Child abusers are not exactly respected.
Do you know in law there are only two circumstances where a husband and a wife may be forced to testify against each other? One is child abuse and the other treason (high or low – does not matter). That is how serious the law takes child abuse. In all other matters the spouse can legally refuse to testify against another spouse and there is just nothing the court can do about it. Obviously it is to protect the marriage and they must actually still be married for this rule to apply. I am sure some men married for this very reason but if it is a sham marriage it may theoretically be overturned though I never heard of that actually happening.
All medical doctors and policemen must report child abuse and act on it. They have no choice and will not take any excuse for they heard all the nonsense before. Let me quote to you from my book Mean Streets – Life in the Apartheid Police: “I heard of policemen who are refused permission to attend certain crime scenes. One in particular, a big six foot plus sergeant once took the same sjambok (whip in American) with which the suspect lashed his wife and children and proceeded to flog the flogger until he begged for mercy so to speak with it. Hence he was always denied permission to attend such scenes and I understand the flogger could not walk properly for months. He also wet his pants for some reason but that is common during judicial floggings. As you know I do not like judicial floggings and the one above was not judicial but in such circumstances thoroughly deserved. Child and women abusers do not have a psychological problem as the long haired liberals seem to think. No sir, they are cowards and need re-education in the most painful way. I bet that fellow never lashed anyone again in his life and if so the sergeant cured him. He should be grateful. I do not expect the long haired liberals to agree and you know what I give too.
On alternative lifestyles, I once saw a contract on this type of thing (some call it a spanking agreement) which a client wisely brought me to look at and he found on the Internet. As a lawyer and legal advisor I thought I heard everything there is to hear but this one took me by surprise. Still, money is money so I looked at it from a law of contracts viewpoint. Must tell you it was not worth the paper it is written on for in law you cannot agree to something which is inherently illegal as I said above. In many jurisdictions it is against the good morals of the public to enter into such an agreement authorising violence against a spouse from a spouse or anyone else for that matter. Even with consent.
Nor did it adequately deal with waivers (also known as indemnities) against prosecution or private claims based on delict because of the consent given. That worried me for this particular client was a fairly big and strong man and his wife (the other part of the contract) tiny and though I did not want it visions came into my head of her being flogged to an inch of her life for she gave me the evil eye when I highlighted my concerns. Here I was wrong by the way, she was the violent one as it turned out but anyway. As a black colleague once said to me” “White folks are strange!” That was after we raided a men’s club and saw things which still make me blush today!
Consent is a very peculiar thing in law and let me explain. As said before you cannot legally consent to anything inherently illegal. For instance, you cannot consent to be murdered (it happens often). The murderer will still be found guilty and punished. I remember a case where a fellow wanted to die for insurance purposes and arranged for his own killing. He actually warned the killer that he may change his mind (not being a brave man and unused to such things) in which case he should carry on regardless. Apparently that is exactly what happened which always makes me smile for it is ironic. He tried to call it off but was killed anyway and a few weeks later the killer claimed his money from the widow who called the Police and the rest as they say is history.
He was sentenced to death but I don’t know if he hanged or not. Most probably did. We Afrikaner people are charmingly direct in our ways. No need to let a man suffer on death row. Hang him and get done was the motto for the death row cells were always overcrowded with the political unrests and a highly efficient Police Force keeping the criminal courts very busy. They needed to hang them to make space for the newly condemned so to speak.
I say this in all my books and it may surprise you for I am conservative in nature (who would have guessed) but I am against the death penalty as a legal man. I simply do not believe lawyers are clever enough not to make mistakes and I have yet to see any man being held back from committing murder (when angry enough) by the death penalty at a later stage. I am also convinced, because statistics prove it, that black men are much more likely to receive the death penalty than white men and that is inherently unfair. Revenge must never be a factor in law. Likewise, I appreciate I am a bit hypocritical on this subject. As a parent and husband I like the death penalty. Some people deserve to imitate a baboon in a tree. No doubt. The problem is to be sure it is actually the killer.
Lastly, how can you consent to non-prosecution when it is not your decision but the State’s to make? You simply do not have that power in law for obvious reasons. Thus those indemnities (waivers) meant nothing in practical terms and still don’t. My point is that if something goes wrong you will not be protected by a spanking agreement. Especially in cases where something unforeseen happens as it always does in life. Someone may get a heart attack or be punished too severely or the pictures leaked out on the Internet etc. You know what I mean.
The “victims” I can tell you were well-known politicians who it seems liked to be dominated to howl like wild hyenas. Was a very weird sight for a 19-year-old constable to see! From what the Special Guard Unit told me (not that we mixed with them a lot since we considered ourselves superior to anyone except our own Flying Squad Units) some of the Apartheid politicians had very strange habits.
* The Special Guard Unit (part of the South African Police) formed the close protection squads to protect the fat Apartheid politicians against their many enemies. Similar in a small way to the American Secret Service guarding the U.S. President.
You know the signs on the wall of every workshop etc. saying you are entering at your own risk? It will not protect them in law if the unexpected happens. We had a case where a fellow (on his honeymoon now that I think of it) decided to rent a horse for a romantic ride with his bride. Well, he fell off and was dragged a mile behind the horse injuring his back and crown jewels so to speak. It is such a painful subject for a man when such an injury is recorded that we should not go into details. Poor fellow! Let us agree that he was unable to perform his husbandly duties for a while causing not only medical costs but much embarrassment and mental anguish. To his wife also no doubt as this was the second day of honeymoon. She has rights as a married woman you know though she did not say anything.
The owner of the horse pleaded that he took that risk on himself and thus could not be held liable as he was clearly warned by the sign that he is on his own. The court disagreed and said he did not give consent to be dragged a mile and suffering what he suffered. He may have foreseen to fall off but never to be dragged that far and be unable to fulfil his marriage duties for months.
This is what is known in law as volenti non-fit injuria. My advice is use caution for there is no such thing as blanket consent in law. Even in sport and when you play rugby or football which is inherently a physical sport you did not consent to the (sometimes appropriate) boxing match during it. That is why sportsmen are arrested and charged with murder or assault if they act outside the rules of the game and kicked the you know what out of his team mate (Irish or Scottish) or the opposite team (South African) or the referee (French).
You may not know this but at regulated boxing matches a Police sergeant is supposed to stop the match if it looks like the fighter cannot defend himself anymore and serious damage likely. Usually though the trainer throws the towel into the ring which should stop the fight. You will note the referee will then physically jump between the fighters to protect the weak. He sometimes taking a few punches for the cause and the law is quite clear on this. If he does not stop the fight he will be held responsible afterwards.
I will never agree with women boxing. Probably because they will kick my (you know what) though I boxed a bit in my life. It was part of our training as policemen and I quote from my book Mean Streets – Life in the Apartheid Police how that went:
“… Boxing taught us to hate and to be fearless in a punch-up. We used to knock each other around and after that we were pitted against another platoon. Now that created a free for all of note which some of us looked forward to because of certain misunderstandings like the one at the mess hall regarding beetroot! We would line up across from each other, and two cadets from opposing platoons entered the ring and battled for two rounds, or as long as the PT Sergeant fancied. Unlike the Army you could bob and weave as much as you liked as long as you won the fight without too much cheating. Losing would surely embarrass our sergeant who would then take an unwelcome interest in our “cowardly losing ways, but not to worry, he, Sergeant van der Merwe by the grace of general Coetzee blah blah blah would cure that. And we could thank him later for his fatherly concern regarding us.” By this time, we admired our Sergeant and would not want to embarrass him anyway—we had learned to detect the twinkle in his eye, and now saw the good man behind the stripes. So we would psyche ourselves up to heights unattainable for mere mortals. There was no sparring. We hit hard. The PT Sergeants wanted to see blood. If it was evident to them that you were not willing to hit a fellow cadet, the PT Instructor might enter the ring in order to make you understand the error of your communist and longhaired liberal thinking.
One cadet abused this rule by deliberately fooling around until the PT Instructor stepped in to sort him out. They then gave us a wonderful exhibition of boxing, since the cadet turned out to be a good amateur boxer with a dislike for that particular PT Sergeant. It must be said the PT Sergeant did not actually lose the fight, but he certainly got a wake-up call. That cadet was a marked man from then on, but he earned their respect none the less. They eventually made peace with each other and the cadet became part of the boxing team where he attacked the Army conscripts to our great entertainment. Obviously we felt less than nothing for the Army conscripts, and would give them all the evil eye whenever possible.
The PT Instructors never bothered to match shape and size as they figured out correctly that a cadet might have to arrest a man of any size in the mean streets. Thus a six feet plus cadet could be pitted against a much smaller cadet. It made the fight fascinating as the shorter cadet normally had the speed advantage and could stay out of trouble…until the bigger cadet was able to land a punch. Since the two platoons lined up across from each other, we could work out our opponent by counting down the cadet relative to your own number. This helped a lot regarding the psychological warfare, for you could give him the evil eyes as the line moved closer to the ring. I stared so hard that I had blurred vision even before entering the ring, trying to dominate him a la wanker versus killer (me). It only worked occasionally to be honest, because my opponent always had the same idea. However, his stare did not dominate me at all.
I did not win all of my bouts, and in fact was almost knocked out once by a skinny cadet with an excellent uppercut. No hard feelings. He was a tough bloke from Natal and we are still friends. None of my platoon mates were sympathetic though. We really wanted to win. The rest of the fights I won, but was disqualified unfairly every time because my opponents would not stand still long enough for me to hit them cleanly, unless I managed to corner them. And when they were cornered they (very unsporting in my view) grabbed the ropes. The grabbing of the ropes made the PT Sergeant restart the fight and the cornering process began afresh. So then I decided to keep hitting them even if they were against the ropes until the PT Sergeant physically stepped in and stopped me, which he always would after a while. And then I would be disqualified for doing it again. I kept doing it because it was the best formula I could think of. Being disqualified did not stop the fight, however. I was once disqualified four times in a single round. The PT Sergeant just shook his head at my clever strategy but never stopped me. Survival is a serious matter, and I felt quite proud of my tactic, which was soon copied by the Rooinekke and then everyone else.
One cadet broke all rules by kicking his opponent in the head during the first round. Apparently he was a kick boxer of note and acted reflexively, or so he said, while daring everyone to “come and get the same and f you too.” The PT Sergeants were thoroughly disgusted with him and forced him to fight three solid opponents at one time. They beat the cr-p out him, kick boxer or not. He was marched off to the hospital when he woke up, but it was all in good fun. No car lifts for cadets with longhaired communist tendencies.
I never saw female cadets in the boxing ring and have no idea how they were taught self-defence, but I can tell you they could throw as good a round-house punch as any man when the occasion called for it. Many times I saw them enter into the spirit of things during a punch-up, and I was never concerned that they would run away from confrontation. Having said that, we tried to protect them as much as possible, much to their disgust. One even said to me, respectfully enough since I was her sergeant, that she would arrest me for interfering with her duties if I kept holding her back and please f step aside so that she could kick the criminal in a motherly fashion. I must admit that I was a bit taken aback, but you know the saying “ladies first,” and she did just what she said she would. The poor criminal made us promise never to tell his mates that a police girl had knocked him out. That was done in a fair exchange for a confession. …”
Does dowry exist in law?
In South African law not at all, meaning the lack of dowry will not make the marriage unlawful so once again it is of historical interest only. Naturally where you are it may be different and sure is when we speak of customary law in Africa as you saw with our pet crocodile arrest somewhere. Lobola is a big deal here under the more traditional folk.
Some cultures do have a price which they put on the woman. Usually the families would meet and negotiate the price which depends on her ability to bear children and education meaning earning power. Sometimes it is paid in cattle but these days more often in money or cash. This is taken very seriously and tribal wars broke out because of a lack of payment. However, it is not law but custom or tradition. Personally I don’t get it for your loved one is worth more to you than all the money in the world. There is no price too high to pay but I am quite grateful that this is not law for I cannot afford my American Patriot under these rules for as we saw in history an American woman is worth more than an Empire. I simply don’t have an Empire to trade for her but if I did I would have done so on the spot.
Seriously, the dowry was never meant as an unconditional gift but to take care of the bride. As such the stepchildren had no automatic right to it and if the couple was childless (barren is a word which I think is hurtful) the dowry was returned to her family after death. That is unless she wanted her surviving husband to inherit it and then only if he had nothing to do with her death.
I understand that the dowry system is a big deal in Asia but whether it is part of their legal systems I would not know. My knowledge is mostly of African and English law. I dare say as with all things in life it started off as a good idea and then was abused into what it is today where status in the community is linked to it. Hence I just cannot see it disappearing and the woman will be abused until it is paid. Really a bad situation all around and I understand in Nepal it is totally prohibited in law whilst in India a couple of thousand women are murdered every year because of a lack of payment from the family.
Out of Community of Property
The only way you can marry out of community and avoid the above nonsense and retain control as a human being over you own life is to see a Notary Public (an attorney) before you get married and sign an antenuptial agreement. Don’t be surprised if he starts talking divorce proceedings at this stage. It only means he is good and carries your interests at heart. Be worried if he does not for that means he is giving you a standard agreement off the shelf which is a deadly sin.
Out of community without the accrual system, means you keep what is yours and he what is his regardless of any growth in your estates through the years of marriage. You cannot be held liable for each other’s debts unless you stand surety (never) and you have to support each other financially as do all spouses if one is broke. I will never advise you not to have the accrual system.
Let us look at the antenuptial agreement.
This is also known as a pre-nuptial agreement and I found quite a few places on the Internet advertising their services to draft this agreement for you. Since none of them are registered lawyers I doubt their abilities to do so and worse the value of such a contract. Stay away from them.
As you know by now the law is very specific on the formalities of a contract and this particular one must be signed by a notary public who is a practising attorney. No-one else, not a commissioner of oaths or anyone regardless of title and rank, is empowered by law to sign this agreement. It is that important! Thus we will look at it but you must (not maybe) go to a notary and have this done before you get married. To make sure I would say at least two months before your marriage.
I cannot stress the importance of this agreement enough. It is the only way to safeguard yourself against the debts of your spouse. You know in life sh-t happens and quite often too. You never know when your spouse is retrenched or sued or something which will cost your estate money if he cannot pay his debts. Unless you are married out of community (via the antenuptial) you will be forced to pay his debts. There is nothing standard about this agreement and it is not a pre-printed agreement to take lightly. This agreement governs what happens with your assets and liabilities on death or divorce. Many times it includes your will and testament but that must be updated as the children are born and circumstances change.
Your last will and testament says how your estate is devolved and the antenuptial says what is in that estate. Hopefully nothing as I would advise you to go the Trust route as set out in my free book Your Worst Enemy under ring-fencing. Still, even if you get a Trust registered, you must have an antenuptial also. It is part of your ring-fencing.
As with all contracts you must understand what you sign. The other day I had the honour to read something my American Patriot wrote and whilst I understood the words since it was in English I had absolutely no comprehension of what she meant. I just could not understand the terminology so I cannot tell you what she meant even if my life depended on it. It is the same with a contract which you don’t understand and you must ask questions until you do. You are in good company for very few people including lawyers have a full understanding of contracts. If they did there would be no arguments in court afterwards.
The basic clauses in an antenuptial are to exclude all of the common law consequences of a marriage in community of property. Thus the first clause is to exclude any and all community of property between the spouses meaning that each has his own estate and no liability towards the other’s debts. You will find though that your worst enemy (banksters and other creditors) will try their luck by asking you to sign with your husband on their documents regardless how you are married. I assure you they would have a surety clause in place to bind you for that is the only way you can become liable for debts which is not your own. You can read all about your legal rights against banksters in my book Your Worst Enemy which deals with your professional relationship with your bank is built on sincere mutual distrust.
Never sign surety and never trust your worst enemy. It is that simple. Even the Bible says that: “He who puts up security for another will surely suffer but whoever refuses to strike hands in pledge is safe.” Proverbs 11 v 15 that is in case your Reverend failed you. The entire ring fencing protection in the world will not help you if you stood surety.
Secondly the contract must regulate your marriage relationship which may not be against the law or contrary to the good morals of the public. Once again we are at the lawful purpose of a legal contract as discussed in the beginning. You cannot have a legal contract to sell cocaine for instance or have a green card arrangement.
When married out of community of property you have to specify if you want the accrual system or not. I will always advise you to include the accrual as it is only fair in my eyes. Unless you specifically exclude the accrual it will form part of your marriage. Whatever is described in the antenuptial must be properly and thoroughly described and not vaguely. You want no uncertainty or arguments about it later. Money can also be excluded by the way and certain categories of income are always excluded. This will be things like damages awarded for pain and suffering. All inheritances or gifts unless said in the antenuptial it will be part of the accrual and an unqualified donation made to the party cannot be claimed back by the giver. Also all pension plans should be excluded.
The biggest thing about the antenuptial is to ensure that no further legal duty exists on personal maintenance after divorce. As with all things in law if it is not said it will not be implied easily. Thus you absolutely must state there that no such duty exists. Keep in mind though this is not valid towards children for both parents have a legal duty of support. That is something entirely different.
It is not impossible, as the years go along, that the antenuptial needs amending. That is done by a Notary Public (attorney) and I advise you to see him on how to do it. As with all contracts the normal rules of knowing what you agree to and no coercion etc. applies. You will need permission from the High Court to amend it and it will cost a lot of money.
So what happens if the antenuptial agreement is not registered through your notary but bought on the Internet and signed between you and your future spouse? Well, in the first place it is still a valid agreement but only enforceable between you and your spouse which defeats its purpose to protect you against creditors (third parties). It cannot be enforced against third parties which is a problem for you will be seen as married in community of property with all the problems and risks associated with that ancient dispensation. It will give you zero protection against the hounds of hell (debt collectors).
The law understands that you may have had bad advice and thus it is possible to register it after your marriage but really, it will cost you quite a bit of money for you will need to convince the court that you discussed it and agreed on the terms before the marriage. Also that it is within a reasonable time after the marriage and you need good reasons on why you failed to do so in the first place. It is an uphill battle and not recommended.
Remember the antenuptial must be signed in front of the Notary with two competent witnesses. He must then register it and give you the number to give to your marriage officer at the wedding.
Marriage out of community with the Accrual System
As far as I am concerned this is the only fair system to marry under. It has to do with the growth of the estates after marriage for it happened that the woman stopped working as soon as the first child arrived and becomes a home carer. In the meantime, as the years go on her husband continues to climb the corporate ladder. Then 25 years down the line he meets someone younger and divorces his wife to be with the new one. His estate (all his own) is now substantial whilst his wife’s is non-existent. Thus he walks out with all his money and the wife with nothing. This cannot be right nor fair and the reason why the accrual system is on the law books.
It means that you still have two separate estates and (unless you stand surety) total protection from each other’s debts. But, when in the divorce court it also means that the court looks at the value of the two estates and deducts the smaller from the larger. It does not matter if the smaller belongs to the husband or wife and in these days it frequently belongs to the wife. The smaller estate spouse is awarded half of the difference of the two estates. I am sure you will agree this is very fair but the problem comes in when a spouse hides assets and the actual value cannot be determined.
My legal consultancy is called upon quite often to ensure that assets are not hidden but in all honesty if the man is ring-fenced properly (and most would be) there is not much you can about it. However, the courts do lean backwards to establish a fair deal for both parties. Divorce, as you will see is seldom an easy get rich quick scheme. Less than 1 percent of the divorcees are better off financially than before. Only lawyers and other experts make good money out of divorce and the more you argue about nonsense the worse off you will be.
During settlement in divorce your attorney must include a clause stating that any hidden assets that come to light after the divorce, will entitle you to 50% of its value. Since this is inexcusable behaviour that spouse must also pay the costs to recover and or finding of such assets. Note this is only where you are married in community or out of community with the accrual system.
When the antenuptial is first drafted both parties must declare the value of their estates at that stage which is called the “commencement value.” Many lie during this process which bodes badly for the coming marriage. It is possible to legally exclude assets as mentioned but they don’t have the moral guts to do so and explain why to their better half. Thus they start lying and it is always unnecessary. Surely your better half will understand if explained to properly why the asset is excluded. It might be a family heirloom. No one is unreasonable enough to make a stand on such issues. However, I saw cases where the lawyers advise the client to make a big stand before she is cheated out of her rightful share. I cannot agree with such advice. Marriage should never be about rightful shares but love between two people with genuine desire to face life together. Not even I am that cynical and would in such cases advise my client to break the engagement off if one party seems to be focussed on material needs.
I said in my book Your Worst Enemy that you should not have any secrets regarding money when it comes to your wife. How can a relationship as serious as marriage be based on a lack of truth? I quote from the book “Secondly, I don’t know about you but secrets between man and wife are very bad for any relationship. You know what I mean! If you have financial woes your family must know about it and I want to hear no excuses from you. You are one facing life together as one. It is a very big deal to be honest about it.
Yes, I know many men will now say “K, I want to protect my wife from this and cannot act like a long haired liberal by crying all the time in her ears.” Indeed, Sir, I agree with the crying part. However, you will be surprised how vicious a woman gets when her man is under threat. I am sure my female readers will forgive me for I mean no disrespect but you only have to look in nature to see my point. It is the lioness who kills most of the time. Not the male who only roars and makes cubs. Well I suppose that is a reason to roar but you know what my point is. Your wife and family will stand by you and support you.
As a man I understand your protection theory but it is cr-p in real life. If she does not stand by you then perhaps it is time for her to go her own way for she most certainly does not love you as a she should. The test here is would you have expected her to tell you if the roles was reversed? The answer better be yes and then what? You love her and support her and sort it out. Really, what more is there to say? I am right!
Tell your family and then the fear of them finding out disappears and takes away a serious weapon in your worst enemy’s arsenal. We do that often in law. We say the wicked things in the beginning of the statement and at the end of the trial no-one remembers nor cares about it either. It is actually an American legal tactic first observed by non-Americans at the Nuremberg War Trials in Germany after the War.”
One final note on the commencement value amount; please be honest for the tax man may just look at that amount and at what you declared on your income returns. Any large discrepancy may start wheels in motion which neither you nor your lawyer thought about.
Common Law Marriage
There is a rumour amongst the public that you have to live together as man and wife for longer than six months before a common law marriage is presumed. That is not true for it depends on your intentions which will be deducted from the way you acted. Wearing a ring and doing things which married couples do will indicate you wanted to be married but you are never automatically married.
What does this mean? Under the Marriage Act or even the Civil Union (same sex marriage) you have to actually get married via the prescribed formula (process) to be considered married and obtain all the rights and obligations which goes with a marriage. Since you are not legally married here it means that living together has no legal advantages which I can think of, as your estate is seen as one of in community of property with no protection against the hounds of hell. I will never recommend you to live together and it has nothing to do with religion.
In law living together falls under “universal partnership” and once established (implied or tacitly) you are in deep trouble because you have zero protection. Not only can the hounds of hell attach and sell your assets for your partner’s debts but you do not have any reciprocal obligation of maintenance as is usual in marriage whilst it lasted. Meaning that one day he will pack his bags or yours and throw you out. You will then have great difficulty in court to claim maintenance from him. Nor are you exempted from donations tax in respect of donations between the two of you. Yes, the tax man is not impressed either. Nor do you have any benefit from the laws relating to the exemption from estate duty of bequests to spouses. Nor are you recognised claimant if his/her partner dies intestate (without a will). Nor do you enjoy any rights as a spouse. You don’t even get the title of spouse but of cohabitee which sounds like something rabbits do.
Get married or tell him to get lost is my advice.
What is meant by marrying the glove?
This is just a custom and not the law in most of Africa but I do believe Dutch law had it at one stage but whether they still do I don’t know. Essentially it is to marry by proxy which is legal in many countries which surprised me when I researched the topic. I understand in the states of California, Texas, Colorado, Montana, and Alabama this is still possible and apparently in 2003 or thereabout such a marriage happened on the international space station between a Russian Cosmonaut and his fiancée in Texas. I presume they could be linked by video feed so it is not the classic marriage with the glove as at least they had communication with each other. In modern law this will never be acceptable as both parties must be present and I worry about the effects of such a marriage where it is allowed for it will probably fall under the in community type of dispensation which we dislike on principle.
I read that in the state of Montana a double proxy marriage may be recognised which means not one of the parties is present at their marriage. I find it rather weird but as all things in law it had a good reason behind it. Before jet aircraft arrived it took months (and would have been silly) to travel to the colonies to be married and travel back for months a few days later. It was also dangerous and expensive.
Many men went to the colonies for years to make their fortunes and at some stage decided the local girls are not quite their cup of tea though they were most definitely not celibate in most cases. They would then ask a mate to look for a wife for them and when he found someone rich enough a few letters would be exchanged. The end result was a glove (not new) being sent with a formal marriage proposal. Consequently, the custom came into being that the woman would hold onto the glove of the husband to be or the husband to be represented by a mate during the marriage ceremony. They would then be married like any other couple and subject to all the usual rules except physical presence. The consummation of the marriage I presume must take place as soon after as is humanely possible as European law is quite strict on that.
It is important to remember that this is not an arranged marriage in the usual sense of the word where the parents make the decisions for the couple. This was done between consenting adults as a practical way to get married over a long distance. Typically, it was resorted to when a couple wish to marry but one or both partners cannot attend for reasons such as military service or imprisonment (why on earth then marry I ask?) or whatever.
Interestingly it is still happening where a couple lives in jurisdictions in which they cannot legally marry. An example would be Israel where only people belonging to the same religious faith may be legally married. Being exceedingly smart people (my father was one) they got around it by way of proxy. Local traditions must be respected.
* Amen says my American Patriot who once conspired to have me eat barbequed alligators of all things. Still does not believe my contention that such behaviour is against my African tradition so we declared a truce which only means she won and I ate it and appreciatively too. It does not taste like chicken but anyway. I am still alive.
Arranged marriages is not forced marriages
As Westerners, we frown on arranged marriages where the bride and groom are selected by a third party and not each other. However, I have many Muslim clients who are adamant that it is not without consent. Muslim law demands consent in any case and it honours their family traditions. They also say that although the wishes of the parents are important it is more than possible for the couple to make their wishes known in advance and leave the negotiations to the family. Observably this is not what we as Westerners understand as an arranged marriage where two people are shanghaied into a marriage for good or worse and usually for the worse without their consent being asked for or required. Since no consent was asked from the parties it will always be void and the effects dealt with as a common law wife marriage. It may even be rape and is just a mess. It must be clear then that arranged marriages are not the same as forced marriages which I just described and as such I have no problem with it. From what I saw in life it frequently works out better than non-arranged ones.
I am sure the whole arranged business is from our old friends the Royals of the world who took delight in marrying into other Royals for political reasons. Now if the idea was to prevent bloodshed and unnecessary wars they failed completely as the royal houses have a deeply disturbing history of attacking each other now and then. It led directly to their downfall but how many lives did it cost? How much is King’s honour worth I wonder? Or an Archduke’s life as we found out in 1914? Certainly, not one soldier or an empire which in my opinion did much good and was larger than anything else since Roman times. And I know that it is frowned on when I say this but the British Empire did stop wars in the form of tribal feuds in Africa. As it stopped slavery and it brought infrastructure with technology which is still used today even if dilapidated because of a lack of maintenance and a general dislike in all things colonial. Moreover, it brought a legal system which is still being used today with few differences in its essence. A parliamentary system based on common sense and fairness all which admittedly could only work amongst Englishmen who have a built in sense of fair play which other nations don’t have naturally. We saw that in Apartheid South Africa who used the same political system but with no known fairness to all.
Consequently, the winds of change were an ill wind indeed even if Mr Macmillan did not know it and seemed happy to sign the colonies away to dictators and other horrible people. I wonder how many died once the highly disciplined colonial Armies and Police withdrew and became what they are today. A joke and an instrument of oppression! It cannot be denied (it is obvious if you want to see) that most Africans were better off under British Colonial Rule than what they were under the tyrants and racists who replaced them. I ask what the so-called freedom brought for Africans since the 1960s. Nothing but dictators and corruption on a scale which is mind blowing! 380 billion U.S. dollars missing in Nigeria alone! How are such things possible in the modern world? It will take a century of non-corrupt (will never happen) Government to rectify the rape of Africa by the dictators.
The dictators were worse than the British. I seldom agree with anything Mr Winston Churchill said or did and certainly do not see much heroism in him either (a subject of delightful disagreement between my English clients and me) but he was right to hang on to the Empire as long as possible for it was the Empire taxes and trade which made Britain great. It is ironic again for no-one did more to destroy the empire by disarming (Washington Naval Treaty) and bankrupting England during the Second World War than the very same Mr Winston Churchill. In my opinion President Roosevelt played him like a badly tuned violin making America and Russia the new super powers which replaced a penniless Britain after the war. Even Germany, totally defeated, split in two and occupied enjoyed a higher living standard quicker after the war than Britain who had food rationing up to the middle fifties ten years after the war was won. How is that possible I wonder?
Great Britain was never taken seriously either by anyone afterwards which is sad for they tamed Africa and did much more good than bad despite what is said today or in the history books (written by long haired liberals no doubt). On this note these days we must ask where the UK will be without America. Many say they should not even be on the UN Security Council but since the UN is a rather useless organisation anyway I suppose it does not matter. Who cares what they have to say or even give lip service to it? Where will America be without the UK is the more pertinent question? The relationship between the two countries is not an equal relationship at all. Simply put, America does not need the UK and I am surprised that no-one since Mr Eisenhower during the Suez invasion (1956) said so openly. Hence we find British Prime Ministers begging for a “special relationship right or wrong” which is so wretched for a once proud nation who ruled the world. A nation who once burned the White House in Washington with relative ease and on whose Empire the sun never set. A nation whose seamen on occasion rescued the Confederate sailors (including the Confederate commanding officer Captain Semmes) when the CSS Alabama was sunk and the U.S. Navy (USS Kearsage) did nothing to prevent the escape for they could not (and wisely would not) open fire on a yacht protected by the old Union Flag. You simply did not insult the British Empire in those days as we in South Africa found out during two Boer Wars and many other nations also.
* In an interesting footnote to history the CSS Alabama features in a South African folk song and one of her officers is buried here too. It was exceedingly funny when a fat politician objected to the song a few years ago stating in all seriousness that it was a slave ship. Obviously his lack of knowledge made him the laughing stock of many historians including me who claim no such title. It was a warship and never transported any slaves ever even if there was one aboard working as a cabin boy for Captain Semmes.
The fact is the British Empire was in charge of most of the world and respected by everyone. The Royal Navy was everywhere and a welcome site the ships were too. And then an Archduke got himself assassinated with his wife and an Empire was sacrificed. For what I ask? Is it to be wondered at that the Afrikaner nation rebelled against their own elected government when they joined Britain against Germany in the First World War? Or that America kept out of it for three of the four years it lasted? And I understand has no official war monument for it either, feeling that they were somehow drawn into a conflict on behalf of an Empire they do not support and had nothing to do with to start off.
Did you know that the English royals were so germanised they had to change their name during the First World War and suddenly became known as the house of Windsor to sound more English? It is very ironic. Even the so-called arch warmonger (extremely doubtful if he was one to begin with) Kaiser Wilhelm the Second of Germany was Royal Navy Admiral and grandson of Queen Victoria, an English queen married to a German prince who introduced the English-speaking world to Christmas trees. The Russian Tsar was also related to both the Germans and English royals. Consequently, you had members of the same family on opposite’s sides of a war to end all wars. Was that what King Edward 8th saw when he tried to stop the Second World War after France was forced to give up? Was he trying to save the Empire? We don’t know and will never know though I suspect that the Russian Intelligence Services may know via Anthony Blunt and his remarkable mission at the end of the war to Berlin which is denied today. I often wonder if his immunity from prosecution had something to do with that until Mrs Thatcher sorted him out.
How is it possible that one family wedded into each other for political reasons (I hope) failed so miserably? This is actually of interest to us for it shows me (and I hope you) that the royally arranged marriages had no known effect on preventing wars or anything else for that matter. These people were most likely not soul mates as is seen from the countless mistresses and lovers they took in. As such, why then bother? Why give your daughter then to a foreigner? Why not allow King Edward 8th his marriage to an American woman then?
We all have seen the movies and books where the bride and groom run away in the middle of the night to get married somewhere. In law there is nothing preventing someone to run away to get married as long as they are able to marry legally. Typically, though it happened with underage girls or where parents refuse permission. Such a marriage is abnitio void as we saw and it may be a crime under these conditions.
I know from reading the story of Tricycle (a British triple spy who predicted the Pearl Harbour attack and was not believed) about the Mann Act in the US to prohibiting white slavery and interstate transport of females for “immoral purposes.” He was arrested for doing just that with an actress (who was not under aged and more than willing). Exactly what immoral purposes is no-one seemed to know. As far as I know it still exists to apply only to transport for the purpose of prostitution or illegal sexual acts and not so much eloping. There is no such thing in South African law and no need either as there is only one law for the whole country. The rest is by-laws and subject to the law of the country (federal law).
We had cases where a young woman came under the evil (they are all evil) influences of a sect and the parents worried sick about mass marriages taking place. It is rather difficult for as long as she is of legal age and able to act for herself there is nothing we can do legally. She can marry who she wants when she wants as she wants. In these cases, you may apply for a court order to have her examined by court appointed psychiatrists and if they find her brainwashed (I hope) to such an extent that she cannot act on her own anymore the law will place her back under the care of her father. As you can imagine this is rather drastic and very difficult to prove. You will not believe what influence the leader has over such people. They are truly dangerous. Kidnapping her is a solution but an illegal one that I cannot recommend to you on paper though it is sometimes the only solution. The problem with this is what to do with her afterwards, and that should be part of your planning. Getting her out is not so difficult. Keeping her and healing her is.
I don’t want to dwell on this too much for all marriages fall under the Marriage Act and dispensations as set out above. However, many different tribal law or customary law exists in Africa and such marriage is recognised by the Recognition of Customary Marriages Act in this country at least. Basically the marriage is negotiated by the family and the couple must be 18 years and older. No-one who entered a civil marriage before is able to have a customary marriage also. Once married it must be registered as such with a witness from both families at Home Affairs.
Nothing prevents the man from marrying again as much as he pleases. I think our current president has four or five wives and good luck to him too. However, he would have needed a court order setting out the future matrimonial property system of his marriages. This is to protect the wives and children but traditionally they followed the first wife with the first male child in succession.
A woman cannot marry more than one man under customary law though there is a tribe which thinks and acts differently and has a Queen in charge instead of a King. They are the odd ones out.
It is important to remember this is not applicable on marriages concluded in accordance with Hindu and Muslim rites which have their own rules. The few I attended were wonderfully traditional and much enjoyed.
These days it is not unknown for a couple to meet on the Internet which is in fact safer than face to face in many cases. It is also a lot of fun. Yes, we all heard of the horror stories and rumours (it may be true) of all sorts of shenanigans happening. No doubt that there are shysters out to take your money but where does the law fit into this? For it cannot be denied that many thousands of couples do meet and marry and are happy afterwards even if a bit of an odd couple sometimes.
Can you blame the website if something goes wrong? Probably not for they all have disclaimers which as we saw is not as important as is the fact that they simply cannot (nor want to I hope) monitor every person on the site. That would be very unreasonable to place such a duty of care on them. Moreover, where does the crime take place or jurisdiction in law? Where the screen is read (thus in any country in the world) or where the servers are? This bothered the law quite a bit and it seems they follow the server these days but some legal systems say the completed act is where you read it. Truth to be told we just don’t know for it is so new that case law is limited.
To be sure to pretend you are a Russian bride if you are in fact an ugly fat bloke is fraud. You simply cannot pretend to be someone who you are not. How far does lying go before it becomes fraud in law for it is known that most men increase their income by as much as 60%? The rule of thumb says the moment that your lies make someone act to his detriment you are committing fraud. Some argue whether a crime such as attempted fraud exists in law since the act of being fraudulent is enough for fraud.
We all know about the hard luck sad stories to send them money. You know what not to do and yes it can happen to you. Do research before committing for most people are online and have an online identity. We always advise never to put too much detail of you online though. Birthdates and addresses should always be false if I may be so frank. Many scammers operate false companies to collect résumés online where all your details are revealed. The scammers advertise a job and invite you to send your bank account details also so that they can pay your salary up front. Really, you should read my book Tricks of Trade – Memories of a Rogue Lawyer in this regard. It is known as the Nigerian 419 letter and instead of money due to you (yeah sure as if you would be that lucky) the latest one is job advertising.
I am more worried by the implications of slavery (the illegal transportation of humans) by selling a person online as a wife and that person is then transported to another country not really knowing or understanding what is happening since many times there is a language problem. You know the stories and certainly I found women on the street working as prostitutes because of this very thing. Others had jobs as waitresses and they are easy to recognise. We rescued a few and sent them back but obviously our funds are limited and I have not yet convinced my clients to contribute more than what they do. We also had to dominate a few criminals to release them to us which was the easy part.
Not every man is honourable and willing to court and respect the new wife once she arrives and she is sometimes subjected to rape and worse. It is evil and because of the nature of such acts anti-establishment and shady. Their passports are taken away for “safekeeping” on arrival and they are held as sex slaves or exotic dancers or whatever. I find that their embassies are so corrupt that complaining is reasonably useless. It is a sad situation and generally a mess.
There are organisations that are now investigating such manifestations and the law will intervene if it knows about it and only if someone drives the process. The problem is that many of these girls cannot return to where they come from for shame on their families. Many don’t qualify for political asylum and are afraid of the police who should be able to assist but do so not because of corruption. Some even got involved in illegal rhino hunting and paid (forced) to act as fake hunters etc. The Internet is neutral also. It can be used for good or bad.
Thus I advise you not to accept a ticket to Africa just like that or get yourself into an Internet marriage unless you really know the guy. Let him come to you but if not then always ensure that your friends and family knows where you are. Report your arrival at your embassy and stay in contact with the outside world. Arrange code words which will signify whether you are safe or not. In this regard please read my briefing of Surviving as a Hostage in Africa or give it to whoever you know is doing business with Africa or will be coming here in the future to read. I am getting fed-up with rescuing good folk.
We seriously recommend doing background searches via search engines on your new lover and be very wary if nothing comes up. It is unnatural that a fellow who is on dating sites will not have an internet footprint. Ask for pictures which are recent and keep it so that you can scan for similar ones via the software available for that purpose. You may be surprised what comes up. Always ensure you have a return ticket for it is very doubtful if you will get through customs without one. Not a country in the world exists who wants non-citizens to stay on forever.
Internet crime is difficult because it is in different jurisdictions and the African Police Forces are not in the least geared to investigate it. They simply don’t understand the crimes (there is no blood) and it is not a priority for them. If you have any doubts email me and we will look at it. Through the years we have a pretty good picture on what is good and what is suspicious. As a matter of common decency we don’t ask money for a simple yes or no.
What do you need to get married?
As said marriage is a big deal in law and the formalities must be followed to the letter. Per se I am not even going to discuss child marriages with you. It is disgusting and utter hogwash in law and amongst civilised men. It can never be legal for too many reasons to write down. Common human decency is one.
Wife kidnapping is one of those things which is disappearing though it happens in parts of Africa, Europe and Asia. In law, it is kidnapping and rape and not to be taken lightly for I am sure that many problems originated from this custom. I know that in certain places it is tradition to do so and more of a fake (put-on) type of action than anything else and obviously that is not what we are referring to. In case you are into this because you saw Seven Brides for Seven Brothers don’t be surprised to be executed afterwards for the law does not take kindly to kidnapping. I don’t think we need to discuss it in more detail. As a Westerner, I fail to get it anyway. There is no need for wife kidnapping as a woman in love will follow you everywhere and anywhere because she loves you. The improved specie is much more loyal than men and much tougher. They have to be to put up with us and survive some men. And another secret, looks don’t count nearly as much as love and loyalty.
The next few paragraphs are aimed at the South African marriage scene but as said many times before the law is reasonably similar everywhere. Just make sure on the local websites what the law is in your country. Getting married is a serious commitment and you have to follow the regulations to the letter or you will have legal problems later on. This is no place for shortcuts.
As a starting point all marriage officers wants to see some sort of identification before the marriage or wedding ceremony. It is to ensure that the parties are who they say they are and sometimes to crosscheck age. If not a resident of South Africa, you will need to show your passport.
As a foreigner you do not need special permission and many thousands marry in places like Cape Town because it is supposed to the top holiday destination in the world and more I suspect because of our very liberal laws allowing gays and lesbians to be married legally. These marriages are valid in the rest of the world though it may not have an effect on your tax payments.
The honeymoon is supposed to be a secret from the bride (yeah sure) but as you know it is tradition only and has nothing to do with law. However, you may need a passport and some women want that passport to be in her married name as a matter of principle. There are also places in the world which will not allow non-married couples in one bedroom which may create difficulties later on. Note this is the same as refusing to work with gay couples on religious grounds and usually illegal under ground of unfair discrimination. I really don’t have an answer to this one as the law is very specific and it is a fight you will probably lose as equality in law is very important. More so than your religious beliefs it seems. Standing on principles is always admirable but don’t be stupid.
A South African woman who wishes to have a passport in her married name is allowed to apply in advance for one with a letter from the marriage officer who is to perform the ceremony stating when and where the wedding will take place. The passport will be issued and handed in trust to the marriage officer who will give it to her as soon as the couple are married. Do this at least three months in advance. Problem solved but I find most Home Affairs Officials don’t know this and standing hours in a queue just to explain this is not good for your blood pressure. But by all means try it if you wish. You are allowed to.
By custom, not law, you are not allowed to see the wedding dress either until the great day. Since it is interesting (much more than law) I thought it wise to include a paragraph or two on the traditional customs of marriage across the world.
Customs at weddings
I say again this is not the law but a nice topic anyway and don’t crucify me if you disagree. Many of the customs and traditions are so vague in origin that we have more than one explanation for each. I took the most well-known ones for the purposes of this book. Nor am I an expert on wedding customs and claim no special knowledge. I sort of concentrated on the legal aspects only or the wedding night up to now.
Have you ever wondered why brides wear white for it is not normal in other parts of the world? For example, Indian brides wear red and in Africa a lot of colours of which white may be one.
By the way, African women, and I mean only in cultural context for they are as Western as you, cover their bosom when married and not when unmarried. That is why you see at the traditional villages and in the rural areas the reed dance where thousands of young women dance with their bosom bare. It is besides other reasons an indication that they are not married and available which is not meant disrespectfully. We had to ban lewd camera men from such festivals who failed to understand and respect our culture. Take my word it is not sexual and I say that most African men would not even notice a bare bosom for that is how we grew up unless of course looking for a wife. It simply was no big deal and would be very vulgar to stare.
The white dress comes from our old friend Queen Victoria who married in white her German prince who gave us the Christmas tree. Actually it was very controversial for white was the colour most associated with mourning and not black as today.
Clearly custom demands this for first time brides and has to do with the bride’s pureness or virginity which is nonsense in most cases and I am sure caused many a giggle at weddings. Besides that, I fail to understand how a woman can be impure by enjoying responsible sex before marriage. It may shock my older readers but it is a rather natural act you know. Mostly because modern marriages are taking place up to a decade or more later in life that what it used to be I find wearing white may be a severe test and I for one would start laughing if I see someone above 35 wearing white. Each to his own! I have a bigger problem with sex between married couples outside the marriage bed than before the marriage but what do I know?
We have already spoken about the ring and the nerve to the heart etc. But where does the best man comes from? I read he was supposed to help kidnap the bride if needs be and to stand between the couple and the guests at the wedding to protect them from angry family members of the bride who may take a narrow-minded view on the affair. Thus he acted as a body guard and should be facing the guests giving them the evil eyes.
Today he arranges for the strippers at the bachelor party which is something I fail to understand enough to mention it. Why would a man in love want to see any woman except his wife naked? I find it embarrassing to be frank and will never allow myself into such a compromising position. It will be disrespectful towards my American Patriot whom I love beyond my capacity to put in mere words. What is more, many clients had blackmail threats because of such behaviour and you can read about that Tricks of Trade – Memories of a Rogue Lawyer if you wish. This is a big no-no in my book but as said before. What do I know?
In South Korea they have a tradition to beat the husband’s tied feet with a fish (I hope not frozen) whilst interrogating him before he may run (crawl?) upstairs to his bride. I am sure this hurts and proves his toughness to everyone. Is not a big deal! I believe in traditional Zulu culture a man had to be a warrior before he could be married and to become a warrior he went through a real tough time which makes fish beating sound like a Sunday afternoon sport. You don’t want a weakling as a husband do you? As long as no permanent damage is caused of course!
You leave before the guests because that symbolises the stealing of the bride and not because you cannot wait any longer for the honeymoon to begin (I hope). It is to whisk her away from her own family and to start a new life as one on your own so to speak. Thus you sneak away after greeting everyone and hope they will enjoy themselves. Collecting money too no doubt!
Would you believe that in early medieval weddings some guests (very unfortunate if you ask me) had to witness the consummation process? This was to ensure the laws of succession I presume. Luckily this dreadful practise was soon replaced by the groom removing the garter from his bride’s leg and tossing it to the eligible bachelors. Same with the flowers from the bride I assume to all the maidens. On this note I have seen some pretty tough lads very red in the face of embarrassment whilst struggling with the garter. It is appealing in a way now that I am middle-aged and have better manners than to laugh at such embarrassment. My American Patriot also has very sharp elbows I may add.
There is a tradition known as shivaree or something where friends and family gather outside the newlywed’s home to make as much noise as possible to disturb the couple. Why this is or to what purpose is anyone’s guess and perhaps this is why the bride is not told where the honeymoon would be. I think you should tell no-one at all in the light of this and lay a false trail to the nastiest person you know. The punch-up which may follow will be vastly amusing if you have my sense of humour.
Why was the bride carried over the threshold by the groom? And note the custom does not say whether she is carried like a sack of potatoes or in your arms or what. In ancient Rome it was believed that a bride who stumbles across the door brings all sorts of evil spirits with her into the house. Ostensibly because the spirits enter her through the souls of her feet! Why is it always the woman who does these things I wonder? A man seemingly is immune to such evil spirits and able to walk around without fear even bare feet. It cannot be from Adam and Eve for that was not really known in ancient Rome. Christianity as a widespread faith came much later.
There is one explanation I really like about the carrying over the threshold of your bride and that is to protect your wife’s chastity. She does not want to look too eager to lose her virginity and by picking her up she is helpless in your strong arms (I hope). As a result, the groom provides a defence for his wife’s chastity as she had to subject to force majeure so to speak. This is delightful I as am sure you will agree. Just mind her head please. I once had a divorce case where the wife actually alleged the groom knocked her head against the door frame and she was suffering from headaches on the first night which he very mean-spirited refused to take into account insisting on his rights as a married man. Yeah well. I was anxious if she was raped or not being sort of unconscious according to her but apparently not. She showed no signs of that in the video they made and went at it with remarkable aplomb for a nearly unconscious bride. The things you hear and see in law are astonishing.
Note also it is of no use against the evil spirits for the woman to carry the man. I am also not sure if the carrying part should happen all the time or just once. It’s not a bad tradition if fact.
Flowers are thrown at the couple as a symbol of fertility. Does not matter if the flowers are replaced with rice, peas, nuts, grains or coins! The idea is the same. To produce offspring! How this helps I would not know. I seem to remember having to clean up after my sisters’ weddings and it was quite a job to pick up all the flowers and whatever else was thrown.
I understand that Hindu brides wear their wedding rings on the toe and more specifically on the left feet index toe (next to the big toe). This is made of silver and only worn by married women. I wonder if modern Western women know this when they wear toe rings. You may be married without knowing it (joke).
Polish weddings, and I cannot confirm this one having no Polish clients yet, have a bridal dance where the bride dances with every guest wearing an apron or a mate does (I am not sure). It is the last dance before she leaves for honeymoon and the apron is filled with money during it. Great tradition I say. Money is always the best wedding gift.
Apparently in the old South’s slaves (not being human) could not legally be married so the tradition arose to jump across a broom as a symbol of marriage. There is no similar African tradition which I know of so am unsure where this one came from. It is to me wonderful to see how the human spirit could not be extinguished despite all the suffering. They simply created their own traditions which should be kept alive though I understand the political sensitivity around it.
The German tradition demands dishes and cookery to be destroyed. I always thought that was Greek to be honest. It is done to ward off evil spirits with a lot of noise. It also warns the couple of the difficulties ahead. I suppose it plays with the arguments bound to flare up now and then in a marriage. Still, the idea of a German hausfrau throwing a cup at her husband just doesn’t sound right. My German clientele are very correct and decent people. I just don’t get it.
I am not sure where it happens but in some traditions the bride (and groom if he cannot run fast enough) is to besmirch the bride with a vile mixture before her big day (I am relieved to say). She is then paraded through town with everyone making a huge noise. Not sure what this is supposed to do but I do know that in some traditions oil is used on the newlywed couple so that they can explore each other’s bodies whilst washing it off! Makes perfect sense in a way!
Where does a marriage take place?
Now you may think this is a rather silly question but in law it must be under a roof. Technically those nice weddings under a tree or in a garden are not lawful at all. This is very amusing for in 1938 we had a mass marriage ceremony in Pretoria with the opening of the Voortrekker Monument. All the children subsequently born were called Euphesia which is from the words” eufees” in Afrikaans translating as century celebrations. The fact is all of them were technically bastards as their parents went through an unlawful marriage in the open veldt. I find it hilarious but since most of them are dead or dying by now I suppose it does not matter anymore.
The law further states marriages must (not maybe) take place in a building which besides the roof must also have open doors. Why? Obviously so that anyone who wishes to object to the marriage may do so and have access to do so! Thus anyone can attend the marriage but remember, not the reception which has right of entrance refusal since it costs money. This does not mean the doors cannot be closed to keep noise out. They must just not be locked and easily accessible. The interesting thing here is that this means you can attend any wedding you please in theory. However, for security reasons you will never be allowed uninvited to the interesting ones.
It also means all those nice weddings you see underwater or on the beach are unlawful. Those weddings mean nothing in law and I would advise you to get married again if this is applicable on you. Properly this time!
Sadly, it happens that people marry just before death etc. so other locations may be used if one of the parties is seriously ill or injured like a hospital room. Still, the injured one must be able to comprehend what happens. This in itself is a good reason why consummation of a marriage is a silly idea. I don’t think the new bride wants to know her husband died of delight whilst consummating the marriage when terminally ill. I know it sounds horrible to be blasé about it but I am sure you get my meaning. It is not always humanely possible and then why have silly legal arguments about it?
* I am sure there are legal exceptions which I am not aware of.
You will also need to prove that you are legally divorced (if applicable) with the divorce decree from court. That is the only legal way you can be divorced besides annulment but the court will be involved. In case you happen to be a widow you must show your deceased husband’s death certificate. Widowers must do the same, of course.
There is no such thing as a waiting period or reading the banns (where the couples name is read in church for three Sundays before marriage) to give everyone a fair chance to object. Nor do you need a license to be married as long as you are old enough and of sound mind as we discussed. This is not the case in the UK apparently where the above is still practised. Other countries also no doubt!
Now you know that in South Africa same sex marriages take place under the Civil Union Act and not the Marriage Act. The problem is to find a marriage officer willing to do so for they cannot be forced to marry you if it is against their religious beliefs or other morality grounds. It does not say so but it seems that a church will then also be able to refuse its premises to be used for such events. I am sure it will make no difference and that love will find a way. How lawful this is would be hard to say for it does not make sense to be unable to refuse service (a hotel room) but lawful to refuse to marry them. I am sure a few court cases will follow and a serious clash between law and religion occur.
You need two witnesses to be at the ceremony and to sign the marriage register. This is very important and they must be able to testify in court. Meaning not mad or under 16 years of age! The marriage officer cannot be a witness and marriage officer. In some parts of the world the witnesses must be 18 years or older and it does not matter if it is family or not. Thus you can never have less than five people at a marriage.
Can you legally marry your cousin? The short answer is yes including your first cousin. Like many other countries we prohibit marriage in the direct line or in other words between father and daughter or grandfather and granddaughter. We feel the same with brother and sister and half-sister and niece who are prohibited. They are what is called blood family.
What about his divorced (or deceased) wife’s sister or aunt or niece? Yes, but not her mother or daughter even if by a prior marriage. This is for practical medical reasons. Inbreeding is never good and in certain communities it shows. Very sad that is for the children who now suffer because of the idiocy of the parents.
Since the law was written for official marriage officers at the local magistrate office at one stage it was seen that you could only be married during office hours meaning 8 AM to 4 PM and not during lunch or tea time. This is not enforced anymore. You may be married over weekends or after hours as you please but not in a civil ceremony at the Magistrate Offices. They won’t be there to marry you.
This is very important for if your marriage officer is not appointed as one by law he cannot legally marry you. Simply put all Magistrates and justices of the peace are automatically marriage officers but note not a Regional Court Magistrate (much more senior in rank and years) who will need special permission to marry someone and become (very briefly during the ceremony) a Magistrate again.
Keep in mind please that a commissioner of oaths is not also a marriage officer. He must be appointed as a justice of peace also which is not a peace officer like a policeman or army officer at all. This is a judicial position.
Marriage officers are appointed by the Minister of Home Affairs and you may ask to see the appointment before getting married. Many Reverends (of all faiths) are appointed after writing a very simple test. Don’t take for granted your Reverend is a legal marriage officer. Make sure for this affects your life seriously.
What about a captain of a ship? Yes, he has that power and allowed to perform a marriage ceremony at sea if he is on a South African registered ship. Remember a ship, like an aircraft, always follows the flag of the country it is registered in. We advise you to always marry again at the court house after such a ceremony.
What about a command pilot on an aeroplane? No. He is not the same as the captain of a ship. Too busy and the much shorter duration of the flight makes this impractical. This not the same as the mile-high club where you don’t need to be married but the usual precautions against rape are applicable. Surely you don’t need the pilot for that! Besides, you won’t easily be allowed to disturb the pilot’s peace during flight with such requests. May be shot or otherwise sorted out for asking.
What about your local embassy personal when you are in a different country? The short answer is no. They are not appointed as marriage officers and though the embassy is theoretically part of the country it represents (always in another country all together) it is full of loopholes. It can seriously affect your chances when in the divorce court. We never trust diplomats and I would advise you to do the same. Not sure what good they do to be honest. Must be behind the scenes for you never hear of them. Is ironic if you think of the noise they make in talking nonsense.
As you know life happens when you don’t expect it and where a person who is not legally a marriage officer acts as one under good faith believing that he is one the Minister of Home Affairs may (not must) retrospectively validate the marriage performed by him. The same where the marriage was performed by a person who is not a marriage officer but the spouses had in good faith believed that he was one. In such cases you should see your lawyer and claim damages from the fake marriage officer for this will most probably mean an application to court to force the Minister to do his job.
In African countries it is a good idea to obtain a marriage certificate every second year to ensure you were not fraudently “married” to a foreigner by corrupt officials. It happens all the time and the Victims only find out when they are arrested or want to get married only to find out they are “married” already. It is a mess and go to your lawyer when this happens.
Americans will be surprised to read this but green card scams happen everywhere and not only in America. We have ten million (some say is much more) illegal immigrants in South Africa and they came from all over Africa and Asia. It is so bad that they are now attacked and killed by local citizens. Xenophobia is a terrible thing. It is sad.
As said there is no waiting period but the law is very specific on what happens during the ceremony. Though it seldom happens anyone may lodge an objection to the marriage in writing to the marriage officer who then must (not maybe) investigate the objection thoroughly and decide to continue or not with the marriage. That is why the doors are open and it may be done at the ceremony too.
I assure you that anyone objecting as a joke or without merit may be sued for the costs of the delayed marriage and for anguish caused under delict. The law takes marriage very seriously and you better be accurate in your allegations to get away with such things. Just because you don’t like the new son in law or daughter is not a good enough reason. This must be something like the couple being brother and sister or still married or under age or no permission from the parents if required by law.
You need two witnesses and proxy marriages with the glove are not permitted. Whether you are on your knees or not depends on your religion and the size of your wife (joke). The marriage officer must use the standard marriage formula by asking each of the parties:
Do you, (full names as on your identity document), declare that as far as you know there is no lawful impediment to your proposed marriage with (full name) here present, and that you call all here present to witness that you take (full name) as your lawful wife or husband? Each spouse must answer “Yes or I do” and it must be audible. Nodding is not good enough unless you happen to have a serious speech impairment preventing you from talking. This is to ensure consensus under law.
Typically, you will now exchange rings and hold hands but the ring exchange is not part of the formula and only symbolic. The marriage officer announces: I declare that (full names) and (full names) here present have been lawfully married. There is no legal need to say also “may the Lord have mercy on your soul” as with death sentences (joke). Voila, you are married and may kiss the bride. Congratulations. I pray you have a long and happy union and I never see you in my office again. Work on it and keep God involved. That I hear is the secret of a good marriage. A family who prays together stays together.
The newlyweds and witnesses then sign the marriage register which is sent to the Department of Home Affairs to be recorded and the marriage officer usually sends you the marriage certificate which you must keep safe as it is needed in the divorce court later (I hope not). He will also give you a copy of the register (a receipt if you wish) for now. Interestingly, a marriage officer may not demand any payment for performing a marriage as he is paid a salary and that would be corruption. A Clergyman may accept a fee for blessing the marriage though and it is custom here to invite him to the reception also. Some drink quite a bit.
Last word on marriage
Phyllis Diller, the comedienne once said: “Whatever you may look like, marry a man your own age; as your beauty fades, so will his eyesight.”
“Divorce is a game played by lawyers.” Cary Grant
If you thought that the law takes marriage seriously then you can imagine what it does to divorce but ironically the actual legal process is very simple. However, getting divorced is never pleasant. When I was still young and idealistic I would caution clients to try again and not to rush into a divorce which also caused a few dark looks. I still say that but I also recognise that sometimes divorce is the best solution if not the only solution. Some couples are just not meant to be and destroy each other piece by piece. That story of staying on for the children is rubbish and cr-p in law. The law knows this and thus divorce proceedings are fairly straightforward and cheap if you settle the matter amicably. It is really not rocket science.
I have a theory on love which I may have explained before and that is that soul mates will hunt for each other and ultimately find each other. And there is absolutely nothing you can do when that happens for your spouse will leave you and you should be big enough to accept this. It also gives you a chance to find your soul mate without being bound to a non-soul mate. It will never work out if you are not soul mates whether you want it to work or not. There is no shame in that and perhaps in the wider scheme of things the children needed to be made (if I can use such a word) and now it is time to move on.
I know I sound cynical and no doubt the years made me more cynical than most but I am not cynical on love. You are either genuinely happy or you are not. The average way is not good enough if you want to survive the years together. Statistics tell us it takes 3 years and 4 months before a couple prefers the television above sex. Or forget to kiss you goodnight. These are big warning signs and used to be known as the seven-year itch. Probably with the Internet and better communications the temptations grew too much.
We have a desire, probably because of the way we grew up, to rescue everyone and everything including our marriages. It may shock you but I think at times that is not what God wanted. Please allow me to be religious for a few sentences and explain with a story which a client told me: “He was a rich man driving somewhere and God told him to stop at a certain house and leave 20 dollars under the door. At first he refused but as is God’s way He insisted and applied enough pressure for my client to drive back to that house and he left 2000 dollars since he was a millionaire and 20 dollars is plainly ridiculous. He felt good about what he did. Sort of helping God along!
When he returned a few days later he drove past that house and noticed police and ambulances. As he stopped and made some inquiries the story came out that the widow’s son living at the back of that house found enough money somewhere and overdosed and they cannot quite figure it out where he got the money. Anyway, now he is dead and they came to fetch the body and the widow most unhappy.”
My point is you cannot save and rescue the whole world and sometimes bad things (divorce is always bad) must happen for other good to come out of it even if you don’t get it right now or are unable to see the bigger picture. Divorce is always (not sometimes) a new beginning. The hurt goes away later than sooner. Even Salome said “It’s better to live alone in the corner of an attic than with a quarrelsome wife in a lovely home.” Proverbs 21 v 9 that is in case your Reverend failed you.
The problem we have in divorces is that egos always play a role and hell has no fury as a woman (or a man these days) scorned. They argue about nonsense and are totally absurd and ridiculous in their demands. Let me tell you that lawyers love it when couples don’t want to settle and grow rich on the proceeds of your vanity. My advice to you is always to settle and settlement means both party is unhappy with the result. That indicates fairness and we will talk about it often enough. Does it really matter if you get 40 million or 55 million? No, it does not. It is enough or should be for anyone who is realistic in life. Understandably in most divorces that kind of money is not involved and everyone loses at a divorce. It is never a get quick rich scheme as I said before.
Does it matter if your lawyers walk away with 10K or 2 million? Yes, I would say the more they make the sillier your decisions were. My point is that divorces do not need to be expensive or spiteful. The law is neutral and if you want to make it that way it will accommodate you but it is unnecessary. Mostly the couples argue about kids (no need – the law is very clear on them). Or financial issues (no need – your antenuptial sorted that one out).
What you cannot argue about is whether you want to be divorced or not. Once the process starts and one spouse wants out he cannot in law be forced to stay married for that would be against the morals of the public. This however depends on which system your country uses as you will see later on. But as a general rule no-one can force you to stay married. Thus you have to accept it if your spouse or you wish to go your separate ways.
Keep in mind this book is not supposed to replace your lawyer but to make it easier for you to understand what happens. When in a divorce go and see a lawyer. As long as you and your spouse are willing to settle the matter it should never cost more than 800 dollars (2013 terms). However, it is not that regulated and varies from law firm to law firm. Shop around.
Let us look at what the law says about divorce.
The Divorce Act of 1979
All divorces in South Africa are regulated by this act. Does not matter how you are married or under which dispensation, this act will regulate the divorce. Keep in mind that you must be married to be able to divorce and I know this sounds silly being logical but it means that living together cohabitees (remember the universal partnership) can never be divorced. Simply they were never married.
No fault system
Up to 1979 and still in many countries today (I am surprised to read) one of the spouses had to show wrongdoing by the other spouse before a decree of divorce could be issued. This is called the “fault system.” It is not applicable here where we follow the “no-fault system.” Wrongdoing simply means that a spouse had to do something nasty like visiting a prostitute. Or physically abused the other spouse which includes mental abuse also! Or have a relationship with a third party which is of a sexual or serious nature (not innocent or platonic as they always claim).
It must be serious enough to satisfy the law that the marriage became untenable. Only then was there a legal reason to divorce. If not, the other spouse may refuse flatly to grant a divorce which as you can imagine led to many more tears as the husband may then move out to live in “sin” with the other woman. Any children so born are illegitimate which had huge problems with succession. Luckily that makes no difference anymore.
It was a system which did not work well for it subjected couples to stay married long after they should have ended the marriage. I spoke to many hundreds of divorcees during the last two decades and all of them agreed that they knew the marriage was over at least 3 to 5 years before they made an end. For the sake of the marriage and children they hang on much to their disadvantage.
Imagine all that wasted time and energy and added anguish! A good marriage is wonderful but a bad one is really bad. Unless you were there you would not understand what I mean. That story of staying together for the sake of the children is absolute cr-p. There is no way you can hide your arguments and dislike of each other from a child. They are not that dumb you know and have a built in survival mode where they pick up signals from their parents. It is a natural thing.
Every single psychologist I asked, said to me it is more harmful to the children to be in a rotten marriage than to be with a single loving parent after divorce. As long as they are informed it is not their fault and never allowed to play the parents against each other as they will do if you are not wide awake. We see that all the time with teenagers and toddlers. In between are still ok. I say again. If you want to ruin that child you need to fall for such tricks. They will try their luck for it is human nature.
Under the fault system couples were tempted (and probably did) to lie in court admitting to wrongdoings which never happened just to obtain a divorce. Thus the Divorce Act made provision for a non-fault system here meaning that you now don’t need to show any wrong doing from either party. The law woke up to the fact that people drift apart and the marriage becomes unbearable and people move on. Under this act you just need to prove you were married legally and still are legally married. And now the marriage broke down in such a way that it will not be reasonably possible to save it though you did try to do so. Then what happens to the children and what settlement did you reach. Very simple in theory that is!
It does not matter whose fault it was though in cases where a marriage ends in divorce and it is clear that one of the parties is to blame, the innocent partner may be awarded partial or total forfeiture of the benefits of the marriage in community of property. Note this is when married in community of property. When married out of community of property with the accrual system he may lose his half share worked out according to the formula. However, I have serious doubts if it will stand the test of equality in law should it be challenged!
This is typically where a bimbo or gigolo for that matter took advantage of a rich elderly (or not) spouse and continued a life of indiscretion and it is obvious what took place. You know what I mean since you read of this every now and then in the newspapers.
In my eyes and I have many supporters (for once) the non-fault system works the best and there are statistics showing that domestic violence and female suicides are less than with the no fault system. Some say the divorce rate is up and other say it is down so no-one knows. Surely it would be wrong and extremely dangerous to keep unhappy couples together. I read about places where the husband would visit a prostitute (not necessarily doing anything) just to have a cause to get divorced and have this against his record forever. Assuredly this is not right and very silly to me but not everyone agrees.
Some say that it made divorce too easy and I suspect that they made the mistake of bringing religion into it. Yes, I do know the Bible only allows divorce under certain very strict conditions but the Bible is not the law of the country. I am a believer as I say in all my books that will always rather follow the Bible than the law. The fact is humans make mistakes and many marry the wrong person for whatever reason. It happens more often than not, as statistics show. Are they to suffer now for their mistakes? Or commit murder to escape? Or be unhappy forever? Religion has no place in law unless the law is clearly wrong.
It is anyway a silly argument to say making divorce easier would lead to more divorces and even it does it is still better than keeping people in subjection. I dare say the fact that I know that my wife could easily divorce me would make me walk the line even better than where I knew she could not and was stuck with me so to speak. Then I would be able to take chances which I would not do under the no-fault system for obvious reasons.
Statistics mean nothing and should not be given more than indicative value. After every war the amount of divorces sky-rockets as the veterans return and the wife realise that the man under the uniform is not what she thought she married. And the veteran realises that the woman he married is not his real soul mate and a wartime romance is not a marriage. That is never taken into account. Divorce is a fact of life.
No time limits
Do you need to be separated from each other (also known as divorced from table and breakfast) before you can get divorced? The short answer is no. It used to be like that but not anymore.
In other countries the law may require one year of separation before you can start with proceedings in the hope or so they say that you will reconcile again or so they say anyway. I don’t believe that. Most probably this hamper back to the Roman law of succession to see if the woman is pregnant or not before allowing her to marry. You will remember we spoke about that during marriage that she could not legally marry within one year of her husband’s death? If so it is rather silly for DNA made this a matter of science and not speculation. We know exactly whose children are whose and it is really not a big deal to prove in court.
What mistakes are commonly made during divorce?
Failure to settle would be number one in my eyes. I note from my research and speaking to other lawyers that this topic is mostly not seen from my viewpoint. By far the majority of lawyers are concerned over bad settlements and feel it their duty to protect their client from such an occurrence. They say that you force the other side to reveal his assets only where you contest the divorce and that alone is enough reason to contest it. They have a point and I am sure you will agree that you don’t want to feel done in after the divorce but as I keep on saying if you take this too far the lawyers make the money and you end up with nothing more than what you could have had in the beginning.
This is a concern to me. There is no way in this world that I will not be suspicious of the motives of some (not all) lawyers who built their so-called reputation on an unwillingness to settle. Are they chasing more fees or are they acting in your best interests? Am I willing to take their word that it is all about the client as they claim with boring regularity? No I am afraid not for I also note the fancy offices and fancy cars and fancy lifestyle which come with the high fees. To me that indicates a chase of money which is always above the interests of the client for once in such a life style it is very hard to come down to earth again. I must say to you that probably 90 percent of all lawyers do not suffer from this disease or that I described above. Most are very decent men.
How do lawyers increase fees without you knowing it? Is very simple and discussed in my free book Tricks of Trade – Memories of a Rogue Lawyer. Allow me to quote to you again: “What is so special about law that no one can afford it? After all it is not rocket science. I keep on saying no-one can afford a lawyer and that is an injustice in itself for it means unequal treatment. Why are lawyers so expensive? There is no real reason besides an imperfect system in my eyes if not greed in certain cases. I understand the principle of professional men and charging fees. I understand the many years of study to become a legal expert but still something is wrong.
Let me explain in a general way how lawyers (by which I include all professionals) work and I can hear them howling in outrage in the background for it is not all of them. Let me rather say the unscrupulous ones and it happens a lot despite the frequent denials from the law society which no-one believes anymore. It also very hard to prove so you have to take my word for it as no-one will admit to such behaviour for obvious reasons.
Any Law Office has different grades from partners (directors) to associates to professional assistants to secretaries. All must and want to be paid at the end of the month which is normal commercial business and not to be wondered at. Someone has to pay for the fancy offices and original portraits and genuine coffee. It is presumably not for free and that someone is you, the client.
The bigger the law office the more money is needed to survive. That is logical. All the lawyers regulate themselves with nice high sounding phrases to limit the fees allowed to charge but there is (always) a loop hole. In South Africa you have three different fee scales agreed to by all attorneys. The first two are limited to which court is applicable, that is the Higher Courts and Lower Courts and is limited to a specific rate which can be charged to your client. And then the loop hole to make more money. The so-called “attorney and own client” scale which means charge whatever you will get away with in normal non-legal English despite the different explanations from the law society in this regard.
Let me explain what happens in practise. A legal letter which could be written on one page swiftly becomes ten or twenty pages. Why? Because the lawyer gets paid per page written or per word and they count it which is easy with modern computers. Thus, you find the most wonderful phrases and words flowing in an elegant way quoting legal sections and other parts of previous letters to create as many pages as possible. It really looks impressive to the untrained eye but is utter rubbish in the sense that it is totally unnecessary information.
Further the letter will be signed by the partner but in fact he was not the one writing it but he would have (I hope) read and agreed with it. It was drafted by a much junior professional assistant who booked his time against it. And so does the next one and the next one and the next one. Everyone cashes in on that one letter for everyone looked at it and made a small adjustment or not. Does not matter for it is time spent and time is money and thus charged to you, the client.
This technique is called “padding” and you will find my letters to be extremely short and to the point so that this cannot happen. I simply don’t believe in long boring explanations for it is not in my nature and never padded anything in my life. To pad a letter (or any legal document) for more fees is unfair to you, the client.
Some will even start a flood of letters to create more fees. This is called a “paper war” and very difficult to prove for it looks like diligent work and caring as well. And yes I am sarcastic when I say just look at the effort made by him for his client. He must be very hardworking to take such care.
The problem here is twofold. One it only takes one idiotic lawyer to start it. And two everything in law must be answered, or denied or it will stand as the truth. So you have no choice but to answer the silly letter and answering creates another letter in return etc. Each letter answered cost you the client money. It is a nice merry go round which will only stop once sense returns and no-one will convince me that fees don’t play a role or that some just happen to like writing boring letters with no real substance to them. Only once in my life, as an article clerk, did I hear a senior partner call another senior partner and tell him to “stop his nonsense and his paper war.” Thus the fees generate a life of its own which is unfair to you.
Rubber stamps instead of personal attention
We find that a secretary rubber stamps the attorneys signature on letters and even summonses. What right does he then have to charge for the work he did not do I ask? Or they have one standard letter which is copied by the hundred and sent to the debtors on behalf of the creditor (client). Why do I mention this? Because you will note some of these letters are not even signed for even the signature is copied. Only the date and named is changed. Still, they want and demand full fees for such work from you, the client who does not know any better and defend themselves by pointing out the original letter was signed and time spend drafting it and it is just about efficiency etc.
I saw this on court summonses also which should make them defective if you know enough to take a stand on it. Most don’t so they get away with it. This type of behaviour and business practises is to me rubbish. You, the client, pay for personal attention and worse, you think you actually get personal attention from a qualified man who you don’t mind paying because of his experience. Do you really want to pay the same money to an unqualified legal secretary? I think not.
How many times did you sit in the consulting room and it is rather obvious that the lawyer did not prepare for your case and sit there reading your file in front of you? That is the ultimate disrespect but is happens all the time.
Now multiply the above and see why they can afford the nice buildings. Of course it will be denied and said, “Yes there may be a few horrible ones who do this type of thing but we have systems in place where you can complain about your legal bills and we don’t condone it either.”
How many complain and how many are punished for this. I wonder. Why do I need to write this in a book? Why do my clients complain about this all the time when we first meet?
In Africa (that is not South Africa) the legal system works in US dollars and thus you need to establish the fees in writing before giving the instruction. As far as they are concerned a foreigner has the money to spend lavishly and why not on them? After all they are professional men and used to charging good money for services rendered. That is not the scam. No one denies the right to charge fees. Even the good Book says the worker is entitled to his wages as he earned it.
But ever since the US dollar is worth many times the local currency the worker in this case makes millions and the client don’t even realise it. He thinks, “Well it is expensive but it is the same as my New York lawyers and besides this is in a different country etc.” This does not make sense to me. Sir, let me explain to you. They should not charge you more than what a local is charged for the same work. To do otherwise is to take advantage of your good nature and called “over reaching.” There is enough money for everyone without doing this. It is not a fair wage.
This is a scam in my eyes and not fair to you either. The law and the efforts are the same. Why should the currency then be different and in fact the price 10 times (to the ZAR) more? No way this makes sense to me even if you are a rich man.
Delay and postpone
That is another tactic lawyers use. Delay and postpone as much as possible in the hope that your opponent runs out of money or that you give up. Thus we find appeals to higher courts for no other reason than time wasting and of course creating excellent fees. Whenever a lawyer takes a technical defence you can bet your last penny that he has no case on merits. Meaning he is looking for a way out since his client is guilty. That by the way is allowed and part of the game.
* I saw this the other day, the man’s letterhead is abused – it is technical, but when I called and warned that fraud may be taking place, he became very defensive and wanted everything in writing (technical defence). Wrong move, the writings went to the Law Society and now he has serious problems, attitude, attitude and attitude. I don’t mind a fight, really not and neither should you when in the right.
It must be said that in our legal system you sometimes need permission from the Judge to lodge an appeal. Refusal will lead to another court case wasting even more time. We try to overcome this by ensuring an Arbitration exit in your contracts and to enforce them. That is the new way and it works very well. No contract should be without it and it must be binding on the parties. In the alternative settle the matter before wasting time and money on the courts. As said somewhere we try to minimise court time to zero.
I firmly believe that law is way too expensive in Africa (including South Africa) and unfair towards the client. But I really have no idea how it can be turned around. Insurance and big corporates will make it more expensive and out of reach of the common man. It can also be correctly said to be a business and a business needs money to survive. Surely no-one denies a fair wage for a fair day’s work. Just make sure you know what you get into.”
You need to be wide awake to the shenanigans of lawyers and other professional men. Any settlement is give and take. I keep on saying this and will do so until it is fully understood. A good settlement is where both parties are most unhappy.
Even the law admits that no-one should be better off after divorce and they mean the spouses and not the lawyers. You simply have to settle and get on with your life. The big thing with settlements is to fully understand what you are agreeing to. Ironically this makes it much better than a court case where you simply don’t know what the Judge will decide or even if you will win.
Keep on asking and clarifying the clauses so you understand it. There is no shame in that and if the lawyer gets upset it only means he is either bullsh-ting you or he is so bad he cannot even explain his own clauses in a way which makes sense to you. In both cases fire him and tell all your friends why you did it if you want to be nasty. Word of mouth is the best or the worst publicity in the world.
Any contested divorce, where you don’t settle, will not only take up to 5 years to finalise but also be extremely expensive. It is emotionally draining and just a mess.
Secondly I find that most men are way too generous when settling because they feel guilty and some clever idiot advised them that freedom is worth any price. You know my feelings on a fair settlement. This does not mean you should now bend forward if you know what I mean. Some try to buy the love back with a more than fair settlement. It never works. Once the trust is broken it is broken.
The very worst argument in law or life is where you want to do the right thing. I wish teachers would teach children to think of the legal consequences before doing the right thing. Real life is not a game and the consequences are the theatre of life. When you bleed you really bleed. Simply you pay your fair share and that is it.
Thirdly some spouses tend to trust the other side too much. They have not yet realised that the relationship of trust is gone. Always get independent advice even if it costs a few dollars. We have to understand that some spouses are in a state of shock and sincerely not capable of making good decisions. You need time and distance.
Do not trust your husband or his lawyer. It is no problem when you both wish to settle the matter and have no real fight to see one lawyer. Under such conditions one lawyer may act for both of you but he will always favour the one paying him. It is just human to do so. Always have the settlement checked by someone else and if it goes over to a contested divorce get your own lawyer. In this regard I assure you that the lawyer himself will tell you this. He knows he cannot act for both sides once it is contested and will always (being a decent man in nature) advise you to have the settlement checked out by someone else.
There are also mediators who you can use to reach settlement but it is not required by law to do so. I have serious doubts on their use and where a party is obnoxious it will be a waste of money. I really fail to see what they can provide which your own lawyer cannot. It is not recommended and if the other side wants a fight then give him one.
Fourthly there is always a sincere lack of information on the other side’s financial affairs and thus we would like to see copies of the bank statements, insurance policies, pension funds and anything else which can determine the value of the estate. Many hide these things on purpose or on traditional grounds where the woman is excluded from financial affairs.
When should you leave the family home?
Some say never. You stay and the other spouse can go. It is good for the children and does not disrupt their lives. This is usually the case where minors are involved. The thing is that may not be realistic though it is often the husband who leaves and the children stay with mom in the family house. There is no real answer in law for it is something to be sorted out between the parties. No law states you should leave or stay. Obviously it also depends whose house it is and what you agreed to in your antenuptial. I found many who live on in the house after divorce and whilst weird to me it worked for them.
Just make sure that if you leave that you take your stuff with you and make sure you take only your own or agreed assets for the other spouse may well be tempted to lay a charge of theft against you. In fact, they often do. If you feel threatened by your spouse, you may ask and will receive police protection when you fetch your assets. You may also obtain a protection order or interdict against him and let me tell you the courts do not take kindly to people who ignore their orders and will act very harshly and swiftly against those who do. It is not an empty threat at all.
The word “entitled” leaves a bad taste in my mouth for it is often abused by people who want to live off social grants from the Government (read taxpayer) whilst making children at an astonishing pace. I feel it is abused but anyway it does not happen much in Africa where the dole system is almost unknown…you lose your job here, you die of hunger. Most certainly council houses and good (free) medical care is non-existent (for what a first world country would understand it to be).
The spouse is entitled to half the pension or retirement annuity when married in community at divorce though this is sometimes limited to the date your divorce order comes through. Meaning the value as it was at that time. In an accrual dispensation marriages divorce that amount would be calculated into the formula to work out whose estate grew the most.
You can choose to have the pension fund money paid in cash or transferred to a new pension fund. This happens about 6 months after the divorce. Whether you keep the cash or build your own pension fund I cannot advise you on. It depends on your circumstances. In this regard you may also want take a life insurance policy on your ex-spouse with you as beneficiary but please understand this does not mean to wish him dead or arrange for his death. It is simply good financial practise. It happens mostly where he has nothing for you to attach.
Always change your will and testament and policy beneficiaries (if allowed in the settlement) after divorce. You would not believe how many times people forget this and upon death one hell of a fight breaks out because of it.
There is no doubt that children play a major part in divorces and sometimes causes it too – especially in second marriages. I find that most parents will go beyond the ridiculous to “protect the children” and it is a good thing in theory. Just take care that you do not deny the other side his rights as a parent in the process.
Up to the 1990s unmarried fathers had no rights whatsoever to the child but this changed where he has the same rights as a married (now divorced) father. I don’t think anyone can deny that this is the best for all involved. The problem or fight is three fold. One who gets them? Two when to visit them? And three how much maintenance for each and how it is paid?
Every now and then a parent tries to use the child as a weapon against the other. Please stop such nonsense for it is selfish and all about you and not the child. The law does not take kindly to silly behaviour. Using a child as a pawn is contemptible beyond words. Grow up!
Each case is judged on its own merits and that normally means the children will see a psychologist and the parents will do so also separately. A parenting plan setting everything out is drawn up and agreed (part of the settlement) and send to the government employed Family Advocate Office who will approve it or not. They are sometimes ridiculous but mostly it is straightforward. Government supplied social workers may also study the case and make recommendations. The court is by law the pater familias of all children meaning the father and will always act to protect them even against their natural parents. This is as serious as it gets.
Typically, the children stay with the mom and the dad sees them every second weekend and holiday depending on age and relationship. These days we see shared parenting where they live one week with the mom and next week with dad. I have grave doubts on this but apparently it works well enough for the courts to agree to it. Note please that refusing access to a child is contempt of court and you may end up in jail. You may however keep to the letter of the court order and where the dad missed his visit he has to wait for the next time. However, think of the child too who may actually miss his father.
The maintenance is always about the child’s needs. Obviously a 16 year old girl needs more than 2 year old toddler and the court wants to be satisfied that this aspect is taken care of. Practically this means staying on a medical aid and the parents are supposed to make it work. We often see one demanding payment for medical expenses upfront instead of claiming against the medical aid. Really, I say again grow up. Once a spouse decides he does not love you anymore there is no need for you to crawl back or be nasty about it. Show some class.
Typically, the child support stops when of age, or marriage or when finished with college and working but in real life this is not so simple even if it is stipulated like this in the settlement agreement. You must keep in mind that a child, even if grown-up and of age, may always claim support from you as his parent. It does not really stop unless it may be argued he is married in which case the spouses support each other. Still, if a child becomes destitute, whether through his own fault or not, there is a duty of support on you and reversely one from him to you. Family should help each other without the need of a court order.
Can you claim against the grandparents if the parent fails to support the child? Yes, in theory but you will soon find out that the courts will not easily grant such an order. It is the exception rather than the rule.
Maintenance for you
This very much depends on the individual circumstances. As seen you already have access to the half of the pension fund etc. and we often find something called rehabilative maintenance which is where you are paid an amount per month for a fixed period to help you to get to your feet. This is anything from four months to two years.
You may also claim money for yourself and the amount varies considerably. Note this got nothing to do with child support which money must be used for the child and the child only. Most of the arguments are about this where the feeling is that the child support money is abused for other things. Strictly speaking that is theft though I never heard of someone actually arrested for it. Keep record of how you spend the money and get receipts. Be open about it and discuss it with your Ex is my advice. Don’t create problems.
We find that most vastly overestimate the actual costs of a child (there is no fixed amount) and remember you will have to substantiate what you claim and if unreasonable the court will reduce it and it depends on what is affordable to the payer. I read of some claiming thousands of dollars for this and unless your Ex is a millionaire or rock star you are absurd. Get real for the courts will be real and you will make a fool of yourself. Or did your lawyer made that decision to write more fees? So that you get what you want after the court reduced it? Very bad advice that is for the courts don’t function in isolation and the clever idiots soon have a reputation for doing that and it may just be you who suffers because of it.
How are you paid is a better question for it is always possible for the payer to deposit it into a magistrate’s office and you then have to stand in a queue for hours to receive a cash pay-out which is dangerous and designed to cause anger. Hence make sure that your settlement states electronic transfer to whatever account you choose. Most forget this for they only look at figures.
As a general rule maintenance can be reduced or increased by the court or between the parties. Always try to sort it out amicably before you run to the courts for assistance. It happens that your Ex lost his job and is unemployed. Running to the court then will only reduce the amount to next to nothing. The law is neutral and cannot force money out of someone who genuinely doesn’t have it. It is a different story when he has money but will not comply with the settlement and then you may use the full power of the law with attachment of goods and salary and income to force him to pay.
He may even be arrested for contempt of court in certain circumstances but remember so can you. I cannot tell you how many moms spend a weekend in jail (until we can bail them out) because they refused access to the child without any other reason than revenge or being obnoxious. They see the new girlfriend in the car and decide well, you will not expose my kids to her. I say again to you grow up. This is the road to unnecessary trouble and a fight you will never win. Even if she did break up your marriage (debatable because why did your husband fall for her in the first place) and she is a woman of ill repute it does not make her per se someone unworthy to be close to your child. Obviously if she is a convicted child molester etc. you may treat her like one but in all honesty, most are not.
May a parent take the child overseas?
We had in South Africa mass emigration during the last 20 years for reasons which has nothing to do with racism as the long-haired liberals think. When by law a man is prohibited to obtain a job and his business cannot obtain contracts from large corporates or State just because he is of the white race he will after a while decide to leave and go where he is welcome to live in peace. We lost half of the white population which is more than 2 million people because of the employment equity laws which was apparently designed to “right the wrongs of the past.” It started off as a good idea and now is causing havoc but anyway, it is a discussion for another book.
More to the point it means that the father may be in Australia or Canada or New Zealand and the mom still here with the child. And she is scared (with reason) that once the child goes there on holiday, he will not be returned as (undoubtedly) he will have better schools, medical attention and living standards than here. There were even cases where families claimed political asylum because of this but I think they were playing the long haired liberals that side. Anyhow, the legal question is can the child leave the country without the parents’ permission? The answer is no. Both parents must agree in writing and to smuggle him out is kidnapping. But what if he fails to return?
Now this is a legal minefield though in theory easy enough for it is kidnapping not to bring the child back and also contempt of court to fail to abide with the court order. Fair enough but it takes a lot of money and court cases to force the return as the parent usually claims some human rights against bringing him back and undoubtedly a case can be made that he is better off there than in a country with eighteen thousand murders a year (we think since no-one believes the official statistics) and a perceived (it is not everywhere) ineffective if not plain corrupt government.
The court, in any country, always looks at the interest of the child first and foremost. Seen in the light of the above I must say your chances of getting him back are not good but not impossible. You will need good lawyers and expert witnesses to convince the court he is better off this side. The longer it takes the less the court will want to disrupt his life again by sending him back.
We also see a lot of citizens who work in a different country and then get a woman / girlfriend pregnant and now want to have access to his child. It really depends on which country and what their laws say about it. Be prepared for a long an expensive legal battle and you will pay maintenance through your nose as countries tend to protect their own more than foreigners. This is not officially admitted for obvious reasons.
Rule 43 Application
I like the rule 43 application as it is designed to level the playing fields by giving temporally (until the court case is finished) relief to the applicant but from what I see on the Internet discussion groups most men dislike it intensely as being unfair to them. Get a helmet and cry me a river I say. This application to court is only done because you failed miserably to do the honourable thing which is to take care of your wife and children as is your duty until the final divorce order takes over.
So what happens? Well, the husband typically leaves the common household to live on his own or with his new girlfriend spending all his money on her because he completely forgot that he will now pay for two households and the new one who wants to be entertained lavishly as is the way with new lovers. Thus he pays nothing to his real (still married) wife causing much suffering. It may also be a tactic to keep her away from lawyers.
The law does not take kindly to such behaviour and thus something we call a rule 43 which will force him (if he has money) to pay maintenance until the case is finished. It will also demand a contribution towards the costs of the divorce and deal with custody (who keeps the child or where he lives) and access to him (when and where and how long under supervision or not).
The strange thing about this rule 43 is that it cannot be appealed because it is not a final order as it is replaced with the order or divorce (always with a settlement) at some stage. This works both ways for it means that the applicant needs to be very sure on what she claims and the payer will be forced to pay that amount granted by the court. It cannot be changed afterwards.
I note as I read the horror stories that many claim that the expenses were falsified and increased to gain more money. I really want to warn you that if you are caught doing this you will be prosecuted for fraud. It is important to be honest in pleadings since anything else will lead to a miscarriage of justice. That always comes back at you at some stage.
Because the application is for interim maintenance (usually when you are struggling financially) the fees allowed by the law for your lawyers are extremely limited and probably less than 120 dollars. This is to make it available to someone in needy circumstances for the children need to be fed etc. Money or the lack of it should not stop you from asking for assistance. Thus if your lawyer charges you more refer the matter immediately to the law society and fire him. He is defrauding you as he is not allowed to charge more than what the act prescribes and no contract between him and you can change that. Honestly most won’t act in such a way anyway.
It is a fast and unbiased application to the High Court and used every day. There is seldom something new in law. Sh-t happened in ancient times too. You may do this alone without a lawyer but I advise you to get one for it is serious and not appealable. If you screw it up it stays screwed up. It cannot be changed afterwards. Theoretically the payer may go back to court if his financial situation drastically changed afterwards to reduce the amount but I never heard of it actually happening.
The application itself is very simple and consists of only two affidavits which are unique in law. Yours to explain what you want and how much (an income v expenses statement) and his to reply on your allegations! I say again the law is neutral. If you lied in your affidavit he will have a chance to show that to the court with his own statement etc. Keep to the truth and keep it short. This is no place for lengthy arguments and it is known that if the affidavits are too long the court will dismiss the case.
However, you must be prepared and that means an income / expenses statement backed up by genuine receipts and reasons why you need what you say you do. Even if the woman earns the same money as the man she can still use this application to share the children’s costs. Remember each parent has a maintenance duty towards his child but this is not a get rich quick scheme as some think.
We had cases where the interim payment was so large that the divorce was delayed and delayed to gain the maximum financial advantage. This is obviously something which will count very heavily against you in actual divorce case later on. It is usual for both sides to pay equally for the costs (little as it is) for this application but the court may order one or the other to carry the full costs. As said it is very little.
What happens if your Ex refuses to comply with a settlement agreement?
I really fail to understand how people can go through all the trouble (wasting your time in a court room and paying lawyers) for a court ordered settlement and then let it slide. You must always follow that order to the letter for if you don’t it may be contempt of court which is big trouble in any country. This is not to say to be unreasonable and if life happens (like your Ex losing his job) discuss it but never let it slide for it makes the order worthless.
Take for instance where a woman (or man) gets an interdict against the other spouse not to threaten her and stay away from her. And then she goes to the spouse out of her free will to make up or whatever. Then tomorrow she is angry again and has the man arrested for being close to her. The law does not take kindly to such things.
Why can you get divorced?
In law we call it the grounds for divorce and remember it does not matter whose fault it is. Where one of the spouses is mentally ill and in an institution for at least two years with no real chance of recovery or in a coma for longer than six months with no real chance to wake up is a good enough reason. So is a jail term of longer than five years for a spouse. Usually it is either one or more of the following: A partner cheated on the other and it does not need to be sexual; the couple no longer love each other and do not want to be together anymore; a partner left the other though keep in mind that abandonment is not the same as divorce. You must still be officially divorced in court to be divorced. If the Ex then cannot be found the law allows for the proceedings to be published in newspapers etc. but it is a long process. See your lawyer in such cases.
Another reason is where the partner abused the other which is not always physical but also mental.
Effects of divorce?
Freedom! You may now marry who you please again but this really (I hope) should not be the reason for divorce. Legally you may also revert to your maiden name but usually you keep the title Mrs even if I suspect that may be politically incorrect. Each to his own! It is your choice and some are angry enough to do so.
You also lose all your marital rights towards each other which we discussed. It is important to carry on with your life and do the best you can. Where children are involved you never really lose contact with your Ex and many told me through the years they became good friends. They just don’t ever want to be married again.
The divorce process
As always you start with a combined summons in the High Court. Whoever asks for the divorce will be the one testifying in even uncontested divorces. The plaintiff will have to answer a few questions which are really no big deal. Be prepared to wait for many hours as the courts are busy and you will soon note that everyone says the same thing. It is a proven formula.
Talk clearly and address the court as “My Lord” even if it is a female Judge (don’t ask why for I don’t know). Very importantly be neatly dressed meaning a jacket and tie for men and take your identity book and original marriage certificate with as you will be asked for it.
Before your big day in court you would (unless silly) sign the fair settlement agreement (unhappily) and the advocates of the Family Office will scrutinize your settlement with the children. It is very possible that a social worker may visit you also on their instruction. They and the social worker are paid by the State but if you wish you may get a private social worker for which you pay which is only fair. Typically, there are no problems with this aspect and they agree to what is normal. It is only where you want something outlandish where it becomes an issue.
If you cannot settle the matter it becomes a normal defended private (civil law) case as we discussed in the beginning. It will cost you tens of thousands if not hundreds of thousands of dollars and five years of your time. It is never worth it.
It is human nature to want to know what happened in a messy divorce as the details come out in court (another reason to settle) which may be hugely entertaining to the public if humiliating to the party or the children and family. Thus, traditionally, South African law and also in many other countries the media is strictly forbidden to publish details of a divorce. Legally this is not defendable anymore as the foreign press is not subjected to this law and with the Internet and social media it is impossible to stop publication. There is also the freedom of speech issue and thus this law is not strictly followed. It happens quite often that one of the parties release a statement to clear the air so to speak.
Why only they will know for it always backfires and is always bad advice. You will never be able to manipulate the media and is opening yourself for ridicule without gaining anything. Nothing! We don’t have juries to influence and our Judges (South African ones at least) cannot be influenced for they are genuinely not corrupt. Besides cowboys don’t cry in public! Making a fool of yourself is your choice though. Don’t expect me to stand anywhere close to you when that happens.
Playing with the media in the middle of the case is plain silly and if you have to say something be non-committal and say what you want after the trial. Each to his own though. If you feel the need to do so, then carry on by all means for each individual case is different. Just remember in Africa we respect grey hair. That cute (and very smart) girl woman who acts as your spokeswoman will never have the same effect as the portly grey haired elder with a serious face. It is the way it is and yes I agree wrong. It is however the African way and our ways are not your ways.
Annulment of a marriage
Annulment is a legal process and the effect is that the “marriage” never happened. Usually we talk of the marriage being “null and void” or just “void.” There are in law two scenarios with this type of mess. One is a void marriage which never had any legal validity from the beginning and two is voidable marriages which must be set aside by the court and until such time it is a valid marriage. Let me explain what is meant by this:
This is where an informal marriage took place without the legal formalities or the spouse thought it was just an engagement ceremony but in fact it was a marriage. Or the spouses are inside the prohibited degree of family. It may even be where mistaken identity takes place and the wrong person is married. No, I don’t know how that happens. Probably someone was wearing a heavy veil.
Sometimes the marriage is solemnized by a non-appointed marriage officer like police officer. Or where one party is already married (and still is). Or where the two witnesses were not present as demanded by the act or perhaps of the wrong age! Or where an insane person marries during a time when still insane. Or where consent from the Minister of Home Affairs is absent.
All these things make the marriage void meaning it never existed to start with. You don’t need the court to declare it null and legally are able to walk away as if it never happened. However, sometimes it is good to approach the court anyway for what is called a declaratory order which simply states that the marriage is void. In practise you may also now have a child to take care off.
Remember here you do have a legal marriage and you cannot simply walk away. You must (not maybe) approach the court for an order of annulment (not divorce). Examples will be where a minor entered into a marriage without his parents or guardian’s permission. This must be done by the parents within 6 weeks of the marriage or within 3 months by the minor after he reaches the age of 18 (adult or of age).
Impotency on the part of the husband is always a good excuse. Also where any kind of duress was used to get a party to marry including tears and threats! It does not need to be physical. A sad one is where the woman is pregnant by a third party and unknown to her husband at the time.
It is important to note here that the aggrieved party does not need to ask for an annulment but may choose to accept the above and ratify the marriage. Then things go on as usual with any marriage. But, if you wish to annul the marriage you must stop living together and acting like man and wife. You cannot come to the court with dirty hands and must decide what you want to do. See your lawyer for this will be an application to court.
Since divorce is such a wretched subject I thought to end this chapter with a joke. After all it may also be a blessing as we saw: Q: How do you know your wife is a good housekeeper? A: After the divorce she keeps the house!
“Every man’s life ends the same way. It is only the details of how he lived and how he died that distinguish one man from another.” Ernest Hemingway
Death in the family
This chapter is not about last wills and estates. For that you need professional assistance as it is quite important and I cannot really explain the estate winding up process here for then our book will be another 200 pages. What is important to us are the basics and that is to always update your will regularly and especially when something major happens like a new child or divorce.
In the first place please destroy your old testament (will) physically once the new one is signed and witnessed to (two normal people above 16 years of age and none who stands to inherit).
Secondly put a date on your new will and make the first clause always to recall and revoke all previous wills. It happens often that we have more than one will with no dates on it and it needs the perception of Solomon to resolve. Very unnecessary for few lawyers are that blessed in the brain apartment (who is?) Whilst they argue your family suffers anguish if not more.
Stay within the law as it must be in writing on a piece of paper. Do not try to rule from the grave or be silly enough to make a video of yourself reading your will. It means nothing in court as we do not know if anyone stood behind the camera pointing a gun at you. In very exceptional cases it may be followed but as a rule it won’t. Years ago we had something called a “soldiers will” which had almost none of the usual formalities and could be written in the dust next to your body and be unsigned. This is no longer part of our legal system.
Lastly, even if the law changed, sign every page and leave no gaps between the last page signatures and where the will ends. That can lead to someone writing another clause in afterwards. Be extremely specific on what inherits to whom. Don’t say my car but mention make and colour and registration and who means full names and whatever else needed to identify who you meant. No insults please. It is silly.
The process in law under the laws of succession to dispense with the earthly goods is called winding up the estate. It can either be intestate (meaning no will or an invalid will) or testate meaning the will is valid and will be followed as closely as possible. Further the estate may be solvent or insolvent meaning unable to pay for all the debts. You lawyer will deal with this and please, I beg of you, do not download just any old will from the Internet for you have no idea under what jurisdiction it falls or who drafted it! A will is never a standard document and like your antenuptial you need to take it seriously enough to see your lawyer and get it done properly.
Stay away from your worst enemy (your bank) for they will write themselves in as executor meaning the person who controls the estate. We know that your relationship with your bank is based on sincere mutual distrust and you may read my book Your Worst Enemy on why I say this. Whilst they will not steal your money they are not as good and loyal as your own lawyer. In fact, I will advise you never to trust your bank.
* I got so many questions on this chapter that I wrote an article called About your Last Will and Testament for those interested. Once again the banksters made the article possible with their inhuman behaviour. It is on my website, free of charge, www.jklsafrica.com
The last will and testament used to be read aloud for everyone to hear but that is not under law a requirement. There is no need for that and many times it shamed the family. You may have made provision for an illegitimate child which no-one knew about. Or you mention something private which really should not be made public. My advice is read the will with your lawyer in his office or yours. None of the above is what I want to talk about to you today. I often find that the widow (meaning widower or surviving child) has no idea what to do when there is death in the family. Understandably this is not a nice topic but we need to talk about it.
Death comes unexpectedly
Yes, you may say to me K, we knew that our dad or husband was very ill and we expected it. Very true but the time of death is unknown to us mortals. Sometimes you wait for weeks and other times it is a matter of minutes. Most terminally ill patients I saw got better and then sank fast. You just don’t know and that is what I mean. Even if you steel yourself against it when it happens it is a shock.
I know from talking to my clients that many feel very guilty for it happens that the deceased suffered so much that they wished him dead. Anyone reading here who saw a parent or wife dying of cancer will understand what I mean. I wish to tell you that it is OK. It is an act of love to switch the machines off in jurisdictions which allow passive assistance. In law the fancy word is euthanasia and in most countries the passive form, where you switch the machines off, is legal. At the same time, active euthanasia where you inject the patient with an overdose to kill him would be murder in many countries. This is a cause for tremendous debate amongst lawyers and medical men.
Please talk to your wife about your wishes if in a coma and you simply have no reasonable medical chance of recovering. The doctors will ask her for it is her right as a spouse as we saw to give permission to make an end. You will not believe what anguish your failure to discuss this beforehand cause the one making such a decision. This must be included in your will and is called a “living will” in law. For me the answer is simple. Pull the plug.
At the same time talk to your wife about your feelings to donate your organs. I know this sounds gruesome but it is not. Once departed your body is nothing but rotting flesh if I may be so cruel and you certainly have no need for it but others may. Donate if you feel it is right but don’t if not. The point is to decide and make your decision known. All this should also be in your will.
Ensure your affairs are in order
Many spouses have absolutely no idea what happens in the other’s financial life and thus would not know what policies and insurance you have or where you keep copies of it. We once had to blow open a safe (not as easy as you think) because the deceased had the combination and of course died with it. It is not funny even though the police bomb squad was grateful for the practise and so was I.
Keep a box where you put all your bank details, investments, will, insurance and whatever else is of interest like assets and debts and make sure your wife knows where it is. A safety box at your bank (for once we won’t call them your worst enemy) or even at your lawyer will do just fine. Update it all the time and do it today. You don’t know when God will call you home.
In your new will please ensure the correct passwords are available for your social accounts (full names and links) so that it can be closed and deleted afterwards. I had a widow in tears the other day in my office because she kept seeing her dead husband on Skype for the computer logged in automatically. As a relatively elderly woman she had no idea how to get rid of it and my IT guy sorted it out for her.
Leave emergency cash in that box for all your accounts will be frozen by law the moment the bank finds out you are departed. It takes a couple of days to a week (I hope not more) before your insurance (life) policies are paid out.
Please make sure they pay into your beneficiary account and not to your estate account which the executor will open. For once it is with the estate it will not be paid over to your family for months if not years until the estate is wound up. Yes, under Laws of Estate it is possible to make payments to the remaining spouse and children but most executors (especially if they are salaried employees of your worst enemy) will find this process much too much hard work and difficult. There is no need to take chances with them. This is another reason to have a Trust which is not affected by your death.
You must understand when you die cash is needed to bury you. Yes, you may have a funeral plan and in fact you should have one but it is often outdated and not enough. Update it please. At this point I must ask you to disclose to your wife what to do with your remains and don’t be silly as some say “leave me where I die or let the lions eat me.” That is not only rude but a stupid answer showing you are an idiot. We want to know if you want to be buried or cremated and where specifically. For health reasons if not public morals you cannot be left where you died!
If your spouse died in a hospital they will keep the body at the hospital morgue until you fetch it meaning your undertaker. They will also give you the death certificate. It is where unnatural death occurs as described above at the police morgue etc. where it becomes more complicated. Get your lawyer involved to obtain the death certificate if you feel unable to do so yourself.
You cannot under normal circumstances lay to rest your spouse where you please, like in your garden but if you have a farm you may get permission for the family funeral plot on the farm. Make sure what the rules and regulations are in your own country. It is normal to cremate your spouse if he should die on an overseas holiday and bring him home for burial. This will very much depend on your insurance and make sure you have such a policy before you leave. The cremation is to save money.
At the same time tell us what do you want at your funeral? Any special songs? An oak or pine coffin? Whatever suits you is fine as long as it is legal. I am sure your wife will want to give you your last wish. You don’t want her to feel guilty and wondering if she made the right choices.
Some cultures demand an open casket. Is this what you want or not? I have dealt with violent death since I was born and seen thousands of dead bodies in my time. To me it is no big deal but it may be to children attending your funeral. Thus I always recommend a closed casket but I find the older generations want to make sure it is you in the coffin. They are haunted by the idea of burying a stranger and not saying goodbye. Each to his own!
This document is crucial and usually issued by the doctor who witnessed your spouse’s death. It is rather important that it is given to the surviving spouse as soon as possible as the insurance companies will not pay out one dime unless she provides it. Nor will the banks and executor do anything without it.
The cause of death stated on the death certificate may be controversial. We had a case here a few years ago where a doctor was crucified because he gave the cause of death as AIDS and our then president simply did not believe that a link between HIV and AIDS existed. This is a medical matter to be decided by the doctor. Personally and the law agrees I think he should write down the truth and that is it.
It is very possible that your spouse may die violently meaning a car accident etc. In such a case a post mortem is performed to establish the cause of death. You cannot prevent the authorities from doing that and it may take a while before you receive the body. I advise you in such cases not to look at the body until the mortician did some patching up. I know of many spouses who suffered recurring nightmares (me included) from such scenes. Thus, I recommend that you contact a reputable undertaker and let him take care of this for a negotiated fee. If you must go to the morgue to identify a loved one, please take a friend with to support you for many are unable to drive home afterwards and take your hat (baseball cap or whatever) off. It is extremely rude and plain uncivilised to keep your hat on in the presence of a loves one’s remains. It shows disrespect whether you want to know it or not.
Who you must inform of your spouse’s departure
The Government, every death must be registered at the local home affairs office in any country. Usually your undertaker will do that for you. Otherwise you must take the death certificate to them and do it yourself. Note please this is a must and not maybe.
The Insurance people, to claim from them what is due regarding life insurance! This includes medical insurance and the forms to do so must be completed correctly and copies made off. Do not trust anyone with this. Remember also to sort out the short-term insurance if there was a car accident etc. and the medical aid.
The Banksters, so that they stop all the credit cards and freeze the accounts. You may need to open your own now if you had a joint account for which you will need your ID book and latest utility account. Note it is unlawful to withdraw money from a deceased persons account unless you are the executor winding the estate up. Reason being is that all the debts must be paid first before anything can be inherited. This is applicable even it is a joint account.
Your lawyer or whoever is appointed as executor in the will to begin the process. They will know what to do and probably assist you with the above and below. Even if you are the executor you may appoint a lawyer at a negotiated fee to do the actual work the way it should be.
The deceased’s work place, for they also need to replace him if I may be so direct. Many times they attend the funeral and bend backwards to assist with pensions and other benefits via their HR Department. You will also have to clean out his office and take his personal belongings home. That is obviously also applicable on the hospital room and work place whichever is applicable. Many times the widow walks out with his glasses, watch and wedding ring which is heart breaking.
Inform the undertaker if a pacemaker or hip replacement or something alien is in the body for you may have a decent explosion during a cremation if they don’t know. It is not funny and they can sue you or the estate for damages.
The Police if the death is unnatural or you think it may be. In such cases treat the area as a crime scene by not disturbing anything and do not allow anyone close to the body. Get your lawyer involved. Best is close the door and wait for the Police.
Family and friends and children, there is no easy way to do this but keep in mind the ages of the people you inform. The elderly typically react much better than the very young.
Who do you avoid?
You may not believe me but once news spreads you will find a lot of gold diggers hanging around. Most sell headstones and whilst I understand the need for a headstone it is not something you need to do for a year because the ground must first settle before a headstone is erected. Don’t let them play on your feelings! I chased one out of our house with my father’s funeral as they have no sense of decency. By the way, the funniest headstone inscription I ever read was “I told my wife I was ill!” Each to his own! If you want something special written which is like baby names not obscene or immoral then please say so before you die. It must be in your will.
Investment policies and schemes will be thrown at you because you are cash flush and my advice is to go to your broker you always went to. Please ensure he is not a fly by night but work for the biggest listed insurance house you can find. There is no need for haste with investments for you may have to use some of the policy money to pay estate debts or duties for the tax man wants his share.
As a general rule you are not capable of making big decisions so leave the money somewhere safe on a 60-day call account and get some distance before making any decisions. Death is a life changing event for anyone close to the deceased.
I don’t need to ask you to be properly dressed I suppose. Many times I saw widows with very revealing clothes which I think are improper but anyway. Perhaps I am too conservative and respect the dead too much. Nor do I wish to talk of the actual ceremony because it differs very widely. African funerals are mostly an excuse for a three-day party as I am sure it is in other parts of the world. That is also fine with me.
I do want to say though that a funeral is what you need to say goodbye and move on with life. You find peace there and whilst the sadness stay much long you can face life again. It is not the end if you are a believer. It is very important to give the widow time to gather her thoughts during this time and to leave her alone. There is nothing you can say or do which will make it easier for her. Show compassion and respect. My father always advised just a hug and that is it. Long stories are mostly unwelcome unless asked for. This is a time of listening because nothing you say can help much, it is a process to go through.
* Since I wrote this Melissa died very unexpectedly. Sometimes I wonder if I had a premonition or something which is, of course, nonsense. You may want to read two further books “Better Men” (about soul mate love) and “When the Tears Stop” which deals with death of a soul mate. I wish such things on no-one. Go to my website, the books are free of charge http://jacobuskotzebooks.weebly.com
Law Professor to author: “Mr Kotze, if you wish to talk nonsense in law, kindly do so with the utmost sincerity and your clients may be convinced, the courts too for all I know. Always get a deposit and never become personally involved with your clients.” And that summarised two law degrees and 20 plus years in law
We had two happy chapters in this book with the engagement and marriage and two sad ones in divorce and death. You know it never needs to go to divorce unless there are very good reasons. A happy marriage is not hard work as the long haired liberals say. By definition it is very easy to love your soul mate and wanting to make sure that it works. It is sort of a natural thing really.
Nothing in this book should prevent you from falling in love and marry the woman or man of your dreams. It is the best feeling ever as I am sure you know. No relationship is ever plain sailing for that would be extremely boring and unnatural in fact. So there will be a few hiccups along the way. It is life you know. My mom is a smart woman and was married for 36 years to my dad before he passed on at the age of 58 twenty years ago this year. Her advice for a long and happy marriage is “never go to bed angry and talk it out before you fall asleep.” I want to leave you with that thought. Don’t make the lawyers richer. Sort it out and be blessed.
About the Author
Koos Kotze is a former member of the South African Police Force. He served between 1985 and 1991 primarily as a sergeant in the Pretoria Flying Squad. After leaving the Police Force he obtained the law degrees B Iuris & LLB at the University of the Free State (Bloemfontein, South Africa) and was a commercial law attorney for eight years. During his police years he was awarded the South African Police Medal for Combating Terrorism twice besides lesser awards. These days he is the owner of JKLS Africa and Associates, a specialist legal consultancy which specializes in hostage survival training and reducing legal risk in Sub Saharan Africa. He wrote nine books on business, law, counter terrorism and security issues. At times he is asked to participate on the Voice of America regarding legal forensic matters. Koos is a widower and lives in Bloemfontein, South Africa. The picture is of him and his late “American Patriot.”
Connect with the Author online
Email Koos at: [email protected]
The information contained in this book is for general information purposes only and while we endeavour to keep the information up to date and correct, we make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability or availability with respect to this book or the information, products, services, or related graphics contained on this book for any purpose. Any reliance you place on such information is therefore strictly at your own risk.
This book is available in print at CreateSpace
This is a “fun” legal book about the circle of life that every human being undergoes and based upon the legal cases the author handled over the last two decades in his legal career. The contents are not fiction and written in simplified legal language, easy to understand, designed to assist those that need to know more about the human pattern of betrothal, marriage, divorce and death. The Circle of Life touches everyone who ever fell in love, discussing inter alia whether the rule of thumb to punish a wayward wife really exist in law, the legalities surrounding betrothal and marriage. What not to do during divorce, make lawyers rich, and what occurs legally speaking after death. It will show you how to avoid the financially ruinous pitfalls. The book is filled with interesting anecdotes and statistics, practical and to the point. It claims no academic status and is easy to ready because of that.