By David Thomson, 28 November 2017
For instance, if a new partner also has children, what will they have to consider in terms of custody, maintenance payments and the right to each other’s estate?
David Thomson, Legal Advisor for Sanlam Trust, says blended families are very common and the practicalities can prove complex. “In 2015, Statistics South Africa reported that children were involved in 55.6% of South African divorces (14,045), so kids are very likely to be a factor in a remarriage.”
He says complicated divorce cases often arise from a lack of transparency and insufficient forethought regarding financial and estate planning. Here, Thomson answers some common questions around the legalities of planning for a blended family:
In the past, mothers were usually granted full custody and fathers received regular access rights. However, these days many people opt for joint custody, which means shared parenting and financial responsibilities. The bests interests of the children involved is prioritised, with the procedure involving recommendations from one or more of the Family Advocate a child psychologist or social worker. The High Court makes the order determining custody and access rights.
Legally, a new spouse is under no obligation to take over financial maintenance of a partner’s children, unless he or she adopts them. However, he or she might take on these responsibilities for moral and emotional reasons. Before a re-marriage, both parties need to be candid about their existing financial responsibilities and future expectations. The pair should agree upfront on any financial obligations a new spouse will undertake and consider having these written into the antenuptial agreement, in consultation with an attorney and financial planner. Ultimately, a step-parent must act as a responsible care-giver for the step-children under his or her care.
Both parents are equally responsible for the children, however, because there’s no court process or divorce order, they are in a ‘vacuum’ in terms of arranging maintenance and custody. It’s advisable for them to ask an attorney to draw up a settlement where they agree on maintenance and who the children will live with – either shared or with one of them. To ensure that the welfare of minor children is maintained, the parents should also approach the family advocate for a report. If, for example, the father refuses to support his children and the mother can’t afford it on her own, she can approach the Maintenance Court for a court order.
A remarriage has no bearing on a natural parent’s existing maintenance responsibilities, which are to pay for a child’s education, accommodation and upkeep until he or she is self-supporting.
A person cannot simply abandon maintenance payments. The individual is legally obliged to honour these, even if it means less money available for a ‘new’ family. This is why honesty is vital and it’s crucial for a new spouse to be fully informed of all maintenance payments due to an ex-spouse. If a person wants to reduce maintenance payments, this has to be settled in Maintenance Court and there needs to be supporting evidence of a good justification, such as a retrenchment or failed business venture. If a matter cannot be settled in Maintenance Court, it will be escalated to the High Court.
Unless a step-parent has legally adopted an ex-spouse’s children, he or she has no legal rights. Similarly, should the children’s biological parent pass away, even if they’re living with a step-parent, their other surviving natural parent/guardian can claim them back, unless the step-parent can prove that this is potentially harmful to the child.
If a last will and testament isn’t revised following a divorce, an ex-spouse may inadvertently remain a beneficiary. For three months after a divorce, an ex-spouse is automatically disinherited. Following this, if a will isn’t altered and the ex is still mentioned in the will as an heir, this person will still inherit when his or her ex dies.
The laws regarding custody, maintenance and the estate remain the same. Where there is more than one spouse or civil union partner, they are treated equally before the law. In conclusion: it’s best to make a will and plan ahead.