Tag: family law

ESTATE PLANNING AND CUSTODY

Posted by nnlaw on September 20, 2022 with 0 Comment

Custody refers to the legal right a person of majority status (usually a parent) has over a child, including the right to have physical control of the child; right to regulate their daily life, right to determine questions relating to their education, social and religious upbringing. The custody of a child becomes a cause for concern and discussion in the instances where the parents separate or file for divorce, or in the unfortunate occurrence of either or both parents’ death. In the event of separation or divorce, parents can always sit down and agree which of them will be the custodian parent of the child/ren, or they could exercise joint-custody. At divorce, this is awarded by the High Court through an order.

In the case of death, families usually sit down and discuss the fate of the child/ren left behind – issues custody come up, and it is decided which relative will “take” the child/ren in and provide for them. These decisions are usually guided by principles of practicality and having to make sure life goes on, and may not always be what is best or what the parents would have desired for the minors.

It is important to think ahead of time and plan according for WHO will have custody of your child/ren when you pass away, WHERE will they stay, WHAT will happen to the assets and wealth you had amassed, and HOW will they have access to it. You are assured to have peace of mind knowing that there is an all-encompassing plan about the custody of your child/ren, should you die whist they are still young. The court can also award custody of the minor child to someone other than the parent of the child if it is in the best interest of the minor child/ren.

The #covid19 pandemic and our experience in this practice prove that planning is important because you will never know when it will be needed the most! Do not leave your children out in the cold and their fate and future in the hands of people who may not have their best interests at heart. #MakeAPlan!

This article is for information purposes only – seek the advice of your Lawyer.

Family Law: Unpacking Divorce Proceedings

Posted by nnlaw on March 5, 2021 with 0 Comment

Unpacking Divorce Proceedings

A civil marriage (registered under Marriage Act Chapter 5:11) is dissolved by the High Court through a process called a divorce. The Matrimonial Causes Act [Chapter 5:13] governs divorces. A divorce process involves a lot of stages from the initial stage of summons up to the stage of the court granting a court order for divorce. This article shall primarily focus on permissible grounds for divorce, factors considered in distribution or division of assets during a divorce and maintenance.

Grounds for divorce

Section 4 of the Matrimonial Causes Act provides for the grounds upon which a civil marriage can be dissolved. The grounds are irretrievable breakdown of the marriage and incurable mental illness or continuous unconsciousness of one parties to the marriage. On the ground of irretrievable breakdown of the marriage the court grants an order for divorce after being satisfied that the marriage relationship between the parties has broken down to such an extent that there is no prospect of restoration of a normal marriage relationship between them. The court considers the following as provided for in Section 5 of the Act

The court consider that parties have not stayed together as husband and wife for a period of at least twelve (12) months before the commencement of the divorce action

The defendant has committed adultery which the plaintiff regards as incompatible with the continuance of a normal marriage relationship

Defendant has been sentenced to imprisonment for a period of at least fifteen (15) years, has been declared a habitual criminal, sentenced to extended imprisonment or has been detained in prison for a continuous or uninterrupted period which amount to five (5) years in the aggregate, within ten years before the commencement of the divorce

The defendant has during the subsistence of the marriage treated plaintiff with such cruelty, mental or otherwise or habitually subject himself or herself to intoxicating liquor or drugs to the extent that it is incompatible with the continuance of a normal relationship.

Factors Considered in division of assets during a divorce and maintenance orders

The factors considered by the court in distribution of property during a divorce are provided for in Section 7 of the Matrimonial Causes Act [Chapter 5:13]. By taking these factors into consideration the court endeavours as far as is reasonable and practicable to place the spouses and children in the position they would have been in had a normal marriage relationship continued between the spouses. This is in line with Section 25 of the Constitution which provides that in the event of dissolution of marriage whether through death or divorce provisions must be made for the necessary protection of any children and spouses.

In relation to property distribution the court can make orders in relation to the division and distribution of property including an order for an asset to be transferred from one spouse to another. The court may also order any other person holding property which forms part of the property subject to the divorce to make a payment or transfer of such property or confer on any trustees property subject to divorce. With regards to maintenance orders the court may make an order for payment of maintenance whether by way of a lump sum or by way of periodical payment to the spouse or the child.

The factors considered in distribution of property and maintenance orders are as follows

The income –earning capacity, assets and other financial resources which each spouse and child has or is likely to have in the foreseeable future
the financial needs, obligations and responsibilities which each spouse and child has or is likely to have in the foreseeable future;
the standard of living of the family, including the manner in which any child was being educated or trained or expected to be educated or trained;
the age and physical and mental condition of each spouse and child;
the direct or indirect contribution made by each spouse to the family, including contributions made by looking after the home and caring for the family and any other domestic duties;
the value to either of the spouses or to any child of any benefit, including a pension or gratuity, which such spouse or child will lose as a result of the dissolution of the marriage;
the duration of the marriage;

Nowadays courts are reluctant in awarding orders for spousal maintenance during divorce unlike with maintenance of minor children which is a must. On the aspect of financial contribution to the acquisition of property, the court as highlighted above also considers indirect contribution made by a spouse through creating a family, taking care of the family and other domestic duties. This aspect applies to women in most cases. In the case of Mhora vs Mhora SC-89-20 the Supreme Court awarded 50% share to a 65-year-old woman who had not contributed much financially to the acquisition of a house but had devoted her life to taking care of his husband and family including children form the previous marriage of the husband. She had left her job to be a full time house wife to provide support for her husband and family. However, the percentage in such circumstances varies and the court considers the facts of each case as presented.

It is also important to note that in terms of Section 7 (3) of the Matrimonial Causes Act there are certain properties that cannot be subject to distribution during divorce. These are properties acquired by a spouse whether before or during the marriage by way of an inheritance, properties intended to be held personally by a spouse in accordance with any custom or in any manner which have a particular sentimental value to the spouse concerned.

Family Law: Dissolution of an Unregistered Customary Law Union (UCLU)

Posted by nnlaw on March 2, 2021 with 0 Comment

Dissolution of an Unregistered Customary Law Union (UCLU)

What is an unregistered customary union? –It is a customary law union wherein lobola is paid but parties do not register their marriage in terms of the law hence the name unregistered customary law union. It is commonly known as kuchaya mapoto. This type of marriage is also potentially polygamous. This type of marriage is not fully recognized by the law serve for the purposes of the inheritance, maintenance and a claim for loss of life support from a third party.

This type of union is not dissolved by the court hence the dissolution or separation is done customarily. The provisions of the Matrimonial Causes Act which applies to a civil marriage and a registered customary law marriage does not apply. There are no divorce proceedings under this type of marriage but a rejection token is given to the spouse as a sign that the other spouse wants to dissolve the marriage. The token has to be in the form of money. It does not matter whether it is a coin or note.

In terms of this union a woman is only entitled to what is known as ‘mawoko” property which does not amount to much but a stove, utensils and linen. This undoubtedly brings grave injustice to women due to the modern day approach of marriages where women contribute financially to the acquisition of properties. Generally in the absence of an agreement the distribution of the properties may be done unfairly with one party (usually the husband) taking most of the property while the other party is left with very little or nothing However, parties may approach the court for distribution of property with resort to common law principles such as an unjust enrichment claim or sharing of property on the basis of an existence of a tacit universal partnership .There is however a bigger burden of proof than in the other types of marriages to prove that you are entitled to the property.

Tacit Universal Partnership

Under common law when parties in an UCLU decide to go their separate ways, that becomes the end of the partnership or relationship. The tacit universal partnership is a useful mechanism created by the courts to allow a cohabitee to share in assets at dissolution of the relationship. This is a useful remedy for distribution of property for spouses in an unregistered customary law union.

A party can approach the court for distribution of property in a situation where both partners contributed in the acquisition of the property that they shared during their term of living together. The court looks at a number of factors before sharing the property and share the property on the basis of the existence of a tacit universal partnership. A universal partnership will exist if the following are present:

(a) Each of the partners brings something into the partnership;

(b) The business or acquisition of property is carried on for the joint benefit of the parties;

(d) The contract should be a legitimate one. (In a universal partnership the acquisition of property does not require an express agreement. Like any other contract it can also come into existence by tacit agreement, that is by an agreement derived from the conduct of the parties)