SHARED RESIDENCY: DOES IT WORK FOR EVERYONE?

It has been a long accepted practice that when parties separate or divorce, any minor children that were born during the relationship or marriage will primarily reside with one parent, usually the mother, while the other parent, usually the father, has reasonable rights of contact with the child(ren). While this has been accepted practice for several years, it is no longer the only solution available to parties.

Many separating or divorcing parties are now considering whether or not to implement a Shared Residence Scheme to ensure that both parents have an equal amount of time with their child(ren) after separation or divorce.

Share residencey is an place or scheme where the primary residence and care of minor children alternates between the parents at regular intervals (eg. Every week). The time between alternating is largely dependent on the age and maturity of the children involved. Older children would likely be able to copes if their residency alternated on a weekly basis, however younger children may not be able to cope with being separated from one aren’t for such a long period of time.

For shared residency to work it requirement commitment from mutually supportive parents and generally requires the following elements to be present:

  • THE PHYSICAL ELEMENT:

    The physical location of the child(ren)’s school and both parents houses plays a large role. Ease of movement and ease of alternating residency is an integral part of achieving a working shared residency plan. (Eg. If both parents residences are similar distance from each other and the school, it is likely shared residency could physically work. On the other hands if the distances are dissimilar from each other and the school, it may indicate that shared residency wont physically work).

  • PARENTAL CIRCUMSTANCES:

    Parents must be able to effectively communicate, engage and support one another in implementing any shared residency plan. This also means that the parents should have adequate social and financial resources to implement the plan. Parents who are extremely acrimonious to one another may find that shared residency is not viable for the sole reason that it increases the need to communicate and reach understandings.

 

  • THE CHILD(REN):

    While shared residency may seem ideal to many parents, this does not automatically mean it is ideal for the child(ren) involved. The true question that must be asked to determine whether any care and contact structure will work is whether the structure is ideal for the best interests of the child(ren) involved. Certain children may find sharing their residency to be stabilising while others will find it incredibly destabilising. Ultimately each case must be decided on its own merits and in the best interests of the child.

 

It will have to be determined if shared residencey is a viable option for parents and children in each individual case and if there is any doubt, or parties cannot agree on an appropriate course to follow, a suitable professional should be engaged to assess the family and determine if shared residency is viable and in the best interests of the children concerned.

Shared residency is fast becoming a preferred option for separating or divorcing parties, especially as gender roles within relationships, society, family and employment are changing with a view to ensuring equality.

In conclusion share residency is an alternative option to the age old accepted practice which could be more beneficial not only to parents, but the entire family.

 

By

Nuno Palmeira

Surviving BEE-Transformation-ANC Kleptocracy

We are constantly bombarded with negative press regarding the state of the South African economy as well as our ability to survive in a changing environment.

Are you in the process of slowly going out of business, or have you developed a strategy that will enable your survival.

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Ian McLaren

Constructive Dismissal

Constructive dismissal occurs when an Employee resigns from their Employer and claims that the resignation has occurred as a result of the Employer’s intolerable and unbearable conduct, workplace, or working conditions. The word ‘constructive’ refers to something that was created or induced and in this context a constructive dismissal means that the Employee’s resignation was coerced by the Employer by some or other reason and was not a voluntary decision by the Employee.

 

Section 186 (1) (e) of the Labour Relations Act defines a constructive dismissal as a dismissal in terms of which “an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee”.

 

If your Employer has made continued employment intolerable or unbearable you may have a case of constructive dismissal, however to succeed with such a case an Employee will have to prove that:

 

  • The employment circumstances and situation was so intolerable and unbearable that the Employee could not be expected to continue and stay employed.

 

  • The unbearable circumstances and situation was the direct cause of the resignation and there was no reasonable alternative at the time other than to resign and leave employment.

 

  • The unbearable circumstances and situation was caused the Employer and the Employee did not do anything to contribute to the situation.

 

  • The Employer must have been in control of and aware of the unbearable circumstances and failed to remedy the situation correctly.

 

It is important to note that the onus of proof in constructive dismissal cases is extremely high and to succeed with a case of constructive dismissal an Employee will have to show and prove that he/she has exhausted all alternatives before resigning and he/she has made his/her Employer aware of the situation and has given the Employer an opportunity to remedy the situation, similar to a breach of contract which in this context would be an Employers duty not to treat the employee unfairly or subject an employee to unreasonable and unfair working conditions.

 

In the case of Mvamelo vs AMG Engineering an Employee was informed that he was to face a disciplinary hearing for theft and criminal charges would also be laid against him. The resigned and claimed constructive dismissal, however lost the case because it was found by the Arbitrator that he had resigned to avoid the disciplinary action. However, in the case of Solidarity obo Van Der Berg vs First Office Equipment (Pty) Ltd an Employee was found to have been performing his work poorly and as a result the Employer stopped paying him a salary and replaced it with a commission structure. The Employee resigned and succeeded with his constructive dismissal claim wherein it was found that the Employee could not be expected to continue employment under such intolerable circumstances.

If an employee did not first attempt to address the situation by, for example, filing a formal grievance or approaching his or her shop steward, bargaining council or the department of labour, then the employee’s resignation would be per se unreasonable and will not serve as the basis of a constructive dismissal case. In such event the employee will be held to have resigned under no undue influence and of his own accord and the Employer would be under no obligation to take this employee back.

 

It is with the above in mind that Employee’s must be careful and ensure that they raise any issues with their Employer and allow their Employer to remedy the situation before resigning and claiming constructive dismissal. It is also important that Employer’s not discipline or treat their Employees unfairly, and deal with grievances or allegations of unfair labour practice as soon as they arise.

 

Warren Sundstrom

 

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