SAME-SEX RELATIONSHIPS, MARRIAGE AND INHERITANCE

On 30 November 2006 South Africa became the fifth nation to allow gay or lesbian couples to marry by promulgating the Civil Unions Act, 17 of 2006, which now entitles same-sex couples to conclude civil marriages or unions in South Africa.

The Civil Unions Act defines a “civil union” as meaning “the voluntary union of two persons who are both 18 years of age or older, which is solemnised and registered by way of either a marriage or a civil partnership in accordance with the procedures prescribed in this Act, to the exclusion, while it lasts, of all others”.

The legal consequences of a civil union in terms of the Civil Unions Act are stipulated as being the same as those of a marriage contemplated in the Marriage Act apply.

With the exception of the Marriage Act and the Customary Marriages Act, any reference in any other law, including the common law, to a husband, wife or spouse in any other law, includes a civil union partner, and any reference to a marriage includes a civil union.

Prior to the promulgation of the Civil Unions Act, on 23 November 2006, the Constitutional Court handed down its judgment in Gory v Kolver and extended the definition of a “spouse” as contained in the Intestate Succession Act, 81 of 1987, to include same-sex partners, even if the partnership was not formalised by marriage. When someone dies and does not leave a valid will‚ the Intestate Succession Act applies and divides a deceased’s estate between family members and spouses.

In effect the decision in Gory v Kolver amended the Intestate Succession Act before the Civil Unions Act was promulgated.

Ten years later, on 29 November 2016, the Constitutional Court handed down another judgment in Laubscher N.O. v Duplan and Another. In this judgment the court held that the promulgation of the Civil Unions Act did not have the effect of amending the provisions of the Intestate Succession Act. In this case the Constitutional Court had to determine whether a surviving same sex partner with whom the deceased lived in a permanent same-sex partnership‚ was entitled to inherit from the intestate estate of the deceased. At the time of the deceased’s death the same-sex couple had not concluded or formalised any civil union and the deceased did not leave a will.

In a majority judgment‚ the Constitutional Court ruled that “….same sex partners will continue to enjoy intestate succession rights under Section 1 (1) of Intestate Succession Act‚ as per the Gory order until such time that the Legislature specifically amends the section”.

In conclusion same-sex partners have the right to:

  • Legally conclude a marriage or civil union;

and

  • Inherit as a spouse would if their partner does not leave a valid will, even in the event that the same-sex couple had not concluded a marriage or civil union, until new legislation is passed to address the issue.

Nuno Palmeira

SURROGATE MOTHERHOOD – A LEGAL PROSPECT

Throughout human history people who have been unable to conceive a child themselves have often relied on other women to bear a child for them to raise. This practice is called surrogacy and was first allowed as a legal practice in Babylonian Law.

While surrogacy is widely accepted and practiced internationally, surrogacy did not formally form part of South African law and was largely unregulated prior to the promulgation of the Children’s Act.

As of 1 April 2010 surrogate motherhood is legally enforceable in South Africa and recently the High Courts in the United Kingdom have granted parental orders in favour of parties who have had children born in South Africa through surrogate motherhood agreements.

WHAT IS A SURROGATE MOTHERHOOD AGREEMENT?

The Children’s Act defines a surrogacy agreement as an agreement between a surrogate mother and a commissioning parent in which it is agreed that the surrogate mother will be artificially fertilised for the purpose of bearing a child for the commissioning parent and in which the surrogate mother undertakes to hand over such a child to the commissioning parent upon its birth, or within a reasonable time thereafter, with the intention that the child concerned becomes the legitimate child of the commissioning parent.

The surrogacy agreement is intended to vest the commissioning parent(s) with parental rights and responsibilities in respect of the child to be born and also results in the surrogate mother losing any rights and responsibilities in respect of the child.

WHEN IS A SURROGATE MOTHERHOOD AGREEMENT VALID:

To be valid a surrogate motherhood agreement:

  1. The agreement must be in writing and entered into in the Republic of South Africa;
  2. At least 1 (one) of the commissioning parents, the surrogate mother and her partner/husband must be domiciled in the Republic of South Africa at the time the agreement is entered into; and
  3. Must be confirmed by the High Court of South Africa.

WHEN WILL THE HIGH COURT CONFIRM A SURROGATE MOTHERHOOD AGREEMENT:

The High Court may not confirm a surrogate motherhood agreement unless:

  1. At least 1 (one) of the commissioning parents are unable to give birth to a child and the condition is permanent and irreversible;
  2. The commissioning parent(s) have the legal capacity to enter into the agreement, are suitable persons to accept the parenthood of the child to be conceived, and fully understand and accept the legal consequences of the agreement;
  3. The surrogate mother has the legal capacity to enter into the agreement, is suitable to be a surrogate mother, has a history of at least 1 (one) pregnancy and birth of a living child of her own, has entered the agreement for altruistic reason and not for commercial purposes;
  4. The agreement must contain suitable provisions in respect of the contact, care, upbringing and general welfare of the child to be born;
  5. Having regard to the personal circumstances and family situations, It would be in the best interests of the child to be born for the agreement to be confirmed.

WHAT IS AN ALTRUISTIC REASON TO ENTER INTO THE AGREEMENT:

The Children’s Act prohibits surrogate mothers from entering into the agreement as a source of income and prohibits the agreement being concluded for any commercial purposes.

The surrogate mother must enter the agreement for unselfish reasons to help the commission parents and can receive no remuneration for doing so.

A surrogate mother however is entitled to receive compensation for any expenses she incurs, as well as any loss of income she suffers, as a result of the pregnancy and/or birth of the child.

CONCLUSION

Surrogate motherhood is a viable and legal option to becoming a parent in South Africa, provided the process is properly structured and implemented in terms of the Children’s Act.

Nuno Palmeira

What happens to your facebook account on your passing

It is the normal course of events to record your wishes in a Will in respect of how your assets should be dealt with upon your death, but what about one’s “digital assets”? By this I mean your social media accounts such as Facebook, Instagram, Twitter, LinkedIn, just to name a few.

While a monetary value cannot be attached to these so-called “digital assets” and as such they won’t be included in your Liquidation and Distribution account, there is personal value in them not only in the photographs posted but in the personal information shared and these “assets” too need to be dealt with in the administration of the deceased estate.

It can therefore be recommended that these so-called digital assets or your wishes on how to administer them be included in your last will and testament.

If we just look at the terms of Facebook, there are settings where you can elect to appoint a legacy contact who will notify Facebook of your death and in doing so will “memorialise” your profile alternatively you can elect to permanently delete your profile. However both these options do have their cons.

Food for thought in this instance would be to include your wishes in your will, which may allow your family to either memorialise your profile alternatively permanently delete it but not before allowing them to download and save your most cherished personal pictures or “memories”. Having said this, it must also be noted that once your death is reported to the Master of the High Court, your will in fact becomes a public document and your log in details will then become a matter of public record. In this instance it is imperative to draw your attention to clause 4.8 of the Facebook Terms of Use which you agreed to upon sign up:-

You will not share your password, let anyone else access your account, or do anything else that may jeopardise the security of your account.”

Bearing all the above in mind, and considering the importance of your personal information, it can then be recommended that you state what you wish for your family and/or executor to do with your Facebook account but recording your personal log in details in a separate addendum (not a codicil) so that your personal and private account details are not a matter of public record.

Notwithstanding your obligations agreed to in the Terms of Use of each social platform, it may sound like an insignificant issue to deal with in the bigger scheme of things, however we all, on a daily basis, and some even more, share something on social media and in doing so have made it a big part of our daily lives. It makes sense to consider what will happen to this “personal investment” upon our death.

Holly Hughes

CHILDREN – THE RIGHTS OF CONTACT OF GRANDPARENTS

In our modern world filled with married, unmarried, separated and/or divorced parents much has been said about the relationship between parents and children, and the exercise of parental rights and responsibilities that may stem from such a relationship. What is not often discussed is the relationship between grandparents and children and whether the grandparents are entitled to exercise any rights in respect of their grandchild.

The reality is that South African law does not automatically afford grandparents any rights in respect of their grandchildren and while in most cases the advent of becoming a grandparent is joyful and positive experience, in some cases the experience is bitter-sweet.

Any conflict between parents and grandparents usually results in grandparents having no contact with their grandchildren. This is often the case in circumstances where parents separate and/or divorce, and the resultant relationship between the grandparents and the parents, especially the parent who has primary care, greatly influences whether a grandparent has contact with a grandchild.

This does not mean that grandparents must resign themselves to not having a relationship with their grandchildren.

The Children’s Act, 38 of 2005, provides that any person having an interest in the care, wellbeing or development of a child may apply to an appropriate court for an order:

  • In terms of Section 23 of the Act, granting them the right to have contact with and/or to care for a child;

and/or

  • In terms of Section 24 of the Act, granting them the guardianship of the child.

In considering applications in terms of Sections 23/24 a court will take the following into account:

  • The best interests of the child concerned;
  • The relationship between the person making the application and the child;
  • The degree of commitment the person making the application has shown towards the child (only specified for Section 23);
  • The extent to which the person making the application has contributed towards the expenses of the child’s birth and/or maintenance (only specified for Section 23); and
  • Any other factor, which in the opinion of the court, should be taken into account.

In considering whether or not to proceed with an application in terms of Section 23/24 it is important to consider the following:

  • To avoid unnecessary litigation, costs and acrimony attempts must be made to mediate any issues before commencing any litigation, except in cases where a child is being abused and/or neglected;
  • The outcome of court processes in respect of children can never be guaranteed and should any application fail, it may only fuel further conflict and isolation;
  • If an order for rights of contact/care is granted in terms of Section 23, this does not affect any parental rights and responsibilities any other person may have; and
  • If an application is made for guardianship in terms of Section 24, it must be demonstrated why any current guardian is not suitable.

Nuno Palmeira