Contractual Consequences of Breaking Off an Engagement
Contrary to popular belief, an engagement is not a mere social agreement. South African common law recognises an engagement (or promise to marry) as a contract from which some contractual remedies may flow. The engagement contract is, however, a contract sui generis (of its own kind). Therefore, it gives rise to certain contractual remedies. If a party to an engagement refuses to marry or unduly delays the marriage, their conduct may constitute a breach of promise. Lawful termination of an engagement When an engagement is terminated lawfully no claim for damages will arise. An engagement can be terminated lawfully through the death of either party, mutual agreement to terminate, withdrawal of parental or ministerial consent (in the case of minors) and unilateral lawful repudiation. Unilateral lawful repudiation allows an innocent party to withdraw from the engagement if there is iusta causa (just cause). Just cause is present when there is a sound reason, which renders the prospect of a happy marriage unlikely, such as material misrepresentation or wrongful conduct. Unlawful termination and its consequences Unlawful termination is termination without just cause. A party who terminates an engagement unlawfully may be held liable for damages (based on the law of contract) and satisfaction (based on the law of delict). What are the contractual damages for unlawful termination? The wronged party will have a claim for breach of promise, which gives rise to claims for real damages and claims for prospective loss. A claim for real damages allows the wronged party to claim all reasonable expenses that they have incurred as a result of the proposed marriage. The Supreme Court of Appeal (SCA) has, however, stated in an obiter remark in Van Jaarsveld v Bridges 2010 4 SA 558 (SCA) (herein after referred to as “Van Jaarsveld”) that the basis for such expenses “do not flow from the breach of promise per se but from a number of express or tacit agreements reached between the parties”. It still remains that the wronged party is entitled to such a claim. Claims for prospective loss are more controversial. The starting point for such a claim is positive interesse, meaning that the wronged party must be placed in the position they would have been in, had the contractual obligation been fulfilled. When this principle is applied in an unqualified way the wronged party may have a claim for half of the estate of the defendant and maintenance that would have been received during the marriage if they are able to prove that the marriage would have been in community of property. This is extremely speculative, and the court will not make such an award. Therefore, positive interesse is tempered by factors such as the expected length of the marriage, the age of the wronged party and the possibility of remarriage. The SCA is critical of these claims. In the case of Sepheri v Scanlan 2008 1 SA 322 (C) (herein after referred to as “Sepheri”) the court questioned the constitutionality of these claims and whether it is rational for an engagement to have consequences seemingly more severe than divorce seeing as the fault system is still applied. In Van Jaarsveld the court mentioned in its obiter that the calculation of prospective losses is “not capable of ascertainment…remote and speculative”. The SCA also confirmed in Van Jaarsveld that “the current approach to engagements does not reflect the current boni mores or public policy considerations based on the values of our Constitution”. The Effect of Cloete v Maritz on Future Contractual Claims for Breach of Promise In Cloete v Maritz 2013 5 SA 448 (WCC) (herein after referred to as “Cloete”) the plaintiff inter alia claimed damages reflecting her prospective loss. The defendant raised a special plea in which he claimed that this is no longer a valid cause of action in South Africa. The High Court found the previously mentioned obiter in Van Jaarsveld to be highly persuasive (although it was not binding on the court) and agreed that the Constitution requires a reconsideration of claims for prospective loss in light of the public’s prevailing mores. The special plea was accordingly upheld, and the court held that claims for prospective loss as a contractual remedy are no longer permissible under South African law. This new approach is in line with the notion in Van Jaarsveld that “an engagement is… more of an unenforceable pactum de contrahendo providing a spatium deliberandi – a time to get to know each other better and to decide whether or not to marry”. The decision in Cloete v Maritz is not currently binding on courts for future cases of breach of promise, because it is merely a High Court decision and must be confirmed. However, the decision remains strongly persuasive alongside the obiter remarks of the of SCA in Van Jaarsveld. It is therefore unlikely that courts will allow claims for prospective loss in the future, especially considering Section 39(2) read with Section 173 of the Constitution and their mero motu duty to develop the common law which is in this case clearly outdated. References: Cloete v Maritz 2013 5 SA 448 (WCC). Constitution of the Republic of South Africa, 1996. Sepheri v Scanlan 2008 1 SA 322 (C). Thabane T “A Contract of Engagement as an Unenforceable Pactum de Contrahendo under South African Law: Distilling Lessons for Lesotho Courts” (2018) 32 Speculum Juris 54-65. Van Heerden B, A Skelton & Z du Toit (eds) Family Law in South Africa 2 ed (2021), Cape Town: Oxford University Press Southern Africa (Pty) Ltd. Van Jaarsveld v Bridges 2010 4 SA 558 (SCA). While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes.
How to proceed with divorce when your spouse cannot be found
Rule 44(1) of the Uniform Rules of Court states that documents requesting a divorce or marriage annulment must be personally delivered to the person it concerns unless the court allows a different service. But what if the sheriff can’t deliver the documents because the person has disappeared or moved abroad? This article will explain alternative service methods the court might approve when personal service isn’t feasible. Alternative methods of service: Substituted service If the person who needs to receive a divorce summons (the defendant) cannot be found, you can ask the court to allow the notice to be published in a newspaper instead. This process is called substituted service and is done by way of a Notice of Motion where the names and status of the parties are described in full, with the necessary averment that the defendant’s residential and work addresses are unknown to the plaintiff (applicant). The application must also set out the following: (1). Why the court has jurisdiction. (2). What the cause is (i.e. divorce due to irretrievable breakdown of marriage relationship). (3). What attempts were made by the plaintiff to trace the defendant. Further averment must also be made regarding which newspaper the defendant usually reads and that the summons will thus come to their attention as a result of the publication in the newspaper. A combined summons is issued before the substituted service order, of which a shortened version will be published in the newspaper. Edictal citation If a defendant is abroad an application must be brought to the High Cout by way of an ex parte application wherein: – The parties are fully described. – The cause is set out. – An explanation of where the defendant is. – A prayer that the court permits that the divorce summons may be served in another country by way of edictal citation, with a one-month period given to respond or defend. After an order is granted, an ordinary summons is issued and served in terms of the stipulation of Rule 4(3) and (4) of the Uniform Rules of Court. Rule 4(3) states that service of any process in a foreign country shall be effected by any person who is, according to a certificate issued by the head of the South African Diplomatic or Counsellor Mission, authorised to serve such process. In terms of Rule 4(5) a sworn translation in the official language of the country where the summons is to be served must be made and has to be served with a certified copy of the summons, if the language of the summons differs from the language of the country of service. It is clear from the above that if personal service of divorce summons is not possible, the court can still order that the summons be served either by way of substituted service or edictal citation. Reference list: 1. Uniform Rules of Court 2. Matrimonial Matters and Divorce, Training Guide, L.E.A.D Law Society of South Africa 3. High Court Practice Training Guide, L.E.A.D Law Society of South Africa While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes. Powered by SucceedGroup
Redefining divorce rights: Section 7(3) of the Divorce Act struck down by the Constitutional Court
In a significant legal development, the Constitutional Court of South Africa, on 10 October 2023, upheld a judgment from the High Court of Pretoria, declaring Section 7(3) of the Divorce Act as unconstitutional. This ruling has far-reaching implications for marriages entered before the commencement of the Matrimonial Property Act and has the potential to reshape the legal landscape concerning property rights in divorce cases. This article explores the Constitutional Court’s decision, the factors it considered, and the practical effects of this groundbreaking ruling on the division of assets in divorce proceedings. A ruling, delivered in the High Court of Pretoria, declared that Section 7(3) of the Divorce Act was inconsistent with the Constitution, especially regarding marriages established on or after the enforcement of the Matrimonial Property Act. Following this, on 10 October 2023, the Constitutional Court affirmed the High Court’s judgment, declaring Section 7(3) of the Divorce Act unconstitutional. Section 7(3)(a) of the Divorce Act reads as follows: “(3) a court granting a divorce order in respect of a marriage out of community of property- entered into before the commencement of the Matrimonial Property Act, 1984, in terms of an antenuptial contract by which community of property, community of profit and loss and accrual sharing in any form are excluded; Some of the factors the Constitutional Court considered are as follows: Differentiation between marriages entered before and after the Matrimonial Property Act. The court ruled as follows: “In my view, the relevant differentiation is confined to spouses in old ANC (antenuptial contract) marriages. Within that group, spouses whose marriages terminate by divorce are treated differently from those whose marriages terminate by death, because the former class has the benefit of the redistribution remedy whereas the latter class does not.” The discriminatory factor of the differentiation, in terms of section 9 of the Constitution: “Even on the broadest view of ‘attributes and characteristics’, however, differentiation based on whether the marriage ends by divorce or death has nothing to do with the attributes and characteristics of the spouses.” The justification of section 36 of the Constitution: “Is the limitation on the equality right in section 9(1) of the Constitution justifiable in terms of section 36 of the Constitution? …” The Constitutional Court then followed with “…it is the existence of section 7(3), coupled with the absence in any other legislation of a similar remedy for marital dissolution by death, that gives rise to the differentiation. It is understandable, therefore, that section 7(3) was the target of the attack. That the remedy might more appropriately be a reading-in of an analogous provision into the MPA is not fatal to the confirmation proceedings.” The court afforded the Parliament 24 months to remedy the defect and stated that there is no reason that there should not be an immediate effective relief in the form of an interim reading-in. It was suggested by the High Court that the reading-in be as follows: “A court granting a decree of divorce in respect of a marriage out of community of property— (a) entered into before the commencement of the Matrimonial Property Act in terms of an antenuptial contract by which community of property, community of profit and loss and accrual sharing in any form are excluded; (b) entered into before the commencement of the [Amendment Act] in terms of section 22(6) of the [BAA] as it existed immediately prior to its repeal by the [Amendment Act]; or (c) entered into in terms of any law applicable in a former homeland, without entering into an antenuptial contract or agreement in terms of such law, may, subject to the provisions of subsections (4), (5) and (6), on application by one of the parties to that marriage, in the absence of any agreement between them regarding the division of their assets, order that such assets, or such part of the assets, of the other party as the court may deem just, be transferred to the first-mentioned party.” In conclusion, this means that parties married out of community of property without the accrual will be entitled to claim redistribution of assets despite their marital regime in their antenuptial contract. However, it must be kept in mind that this does not grant a party automatic entitlement and that the party claiming in terms of section 7(3) of the Divorce Act still has to prove their contribution towards the other party’s estate. Each matter will be dealt with on its own merits and the courts may make an order on what may seem just and equitable. Reference list: EB (born S) v ER (born B) and Others; KG v Minister of Home Affairs and Others (CCT 364/21; CCT 158/22) [2023] ZACC 32 (10 October 2023) While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes. Powered by SucceedGroup
Can you inherit from someone you have merely been living with?
In South Africa, the number of couples who are permanently living together in life partnerships is increasing every year. What are the consequences that would ensue if either of the partners in the relationship dies without a will? Should a surviving partner in such a scenario have a claim for inheritance or maintenance from the deceased estate? If yes, under what circumstances would a claim be allowed? The answer to these questions will be explored in light of the Bwanya v Master of the High Court, Cape Town and Others case. The facts of the Bwanya case were as follows: Ms Bwanya and Mr Ruch entered into a romantic relationship in 2014. They grew so intimate that they moved in together as well. The couple’s friends all knew about their relationship, and Mr Ruch even introduced Ms Bwanya to his friends as his wife. The romantic relationship they had, comprised all the characteristics of a marriage. For example, Mr Ruch bought all the groceries, and household necessities and also provided for the household expenses. Ms Bwanya provided him with love, care, support, and companionship. In addition, the couple also made future plans together. For example, Mr Ruch has been helping Ms Bwanya obtain her license. The deceased had also planned to buy her a car, as the couple planned to start a cleaning business together. The two also had plans to cement their relationship with a baby. In 2015, the pair got engaged. The couple planned a trip to Zimbabwe for lobola negotiations to commence. Mr Ruch also planned on selling one of his properties in preparation. Sadly, two months before the trip to Zimbabwe, Mr Ruch passed away. He had nominated his mother in his will who had already predeceased him. Thus, he died intestate. Ms Bwanya, after the death of her life partner lodged a two-fold claim against the deceased estate. Firstly, to inherit under the Intestate Succession Act, and secondly, to claim maintenance under the Maintenance of Surviving Spouses Act. The basis of the claim was that the relationship between the two, was akin to a marriage and that the parties had undertaken reciprocal duties of support. The Constitutional Court in its judgement, held that permanent life partnerships must be accorded the necessary respect in our society as they are one of life’s realities. Furthermore, the court declared that the relevant legislative provisions constitute unfair discrimination and are constitutionally invalid. On this basis, the court held that when the term “spouse” is used in the provisions, it must include: “a surviving partner of a permanent life partnership terminated by the death of one partner in which the partners undertook reciprocal duties of support and in circumstances where the surviving partner has not received an equitable share in the deceased partner’s estate”. The effect of this judgement is that a surviving partner in a permanent life partnership will be able to claim for maintenance and inheritance. However, it must be emphasised, that this legal entitlement of a surviving life partner does not flow from the mere act of living together permanently as a couple. Permanent life partners do not obtain a right to inherit or claim from a deceased estate by the operation of law. The court qualified the claim by stating that a surviving partner can only claim where the parties had undertaken reciprocal duties of support. The court gave a guideline as to what can be considered to determine whether or not there is a reciprocal duty of support between life partners. A reciprocal duty of support between life partners may entail the following: “…such as loyalty and sympathetic care and affection, concern…as well as the more material needs of life, such as physical care, financial support, the rendering of services in the running of the common household or a support-generating business…To my mind, these features are not foreign to permanent life partnerships….In all these respects, permanent life partnerships are very much akin to marriages.” In conclusion, it is clear from this judgement that a surviving life partner is not left without a claim when their life partner has predeceased them. However, this claim is not guaranteed because the claim does not flow from the mere fact of living together. The court carefully set out the circumstances under which the claim would possibly be allowed. Reference List: 1. Bwanya v Master of the High Court, Cape Town and Others 2022 (3) SA 250 (CC). Marriages on the decline in South Africa (02-10-2023) <https://www.statssa.gov.za/?p=16142> While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes. Powered by SucceedGroup
Is it possible to override a registered antenuptial contract with a postnuptial agreement?
Before the Matrimonial Property Act 88 of 1984 (MPA) was introduced, matrimonial property law in South Africa was governed by the immutability principle. This principle dictated that the property regime chosen by a couple at the time of their marriage could not be altered afterwards. The case of Honey v Honey in 1992 (93 SA 609 (W)) reinforced this, stating that under common law, spouses couldn’t modify their matrimonial property system through an agreement. Any contract attempting to change the prenuptial agreement was considered void and unenforceable. However, the introduction of the MPA softened this rigid stance by providing ways for couples to change their matrimonial property system after marriage. Matrimonial Property Act In terms of section 21(1) of the MPA, a husband and wife, whether married before or after the commencement of this Act may jointly apply to a court for leave to change the matrimonial property system including the matrimonial power, which applied to their marriage. The court has the authority to approve changes to a matrimonial property system if it is convinced that: there are sound reasons for the proposed change. sufficient notice of the proposed change has been given to all creditors of the spouses. the proposed change will prejudice no other person. Upon meeting these conditions, the court can order that the existing matrimonial property system no longer governs the marriage and can permit the spouses to execute a notarial contract that will define their matrimonial property system going forward, subject to any conditions the court deems appropriate.1 AM v HM 2020 (8) BCLR 903 (CC)2 The abovementioned case concerned the question of whether a contract concluded by married persons, which departs from the terms of their antenuptial contract, is valid and enforceable. The applicant (wife) and respondent (husband) were married in community of property with the exclusion of the accrual system. During their marriage, the applicant (the wife) drafted an agreement to revise specific terms of their antenuptial contract. This new agreement proposed that she would receive half of the respondent’s (husband’s) estate and that he would continue to provide for her maintenance. The husband signed this agreement on 10 November 2014, and following this, the couple continued to live together as husband and wife. On 30 November 2014, the respondent indicated that he intended to institute divorce proceedings and issued a divorce summons against the applicant. The applicant filed her counterclaim where she sought, amongst other things, a declaratory order that the agreement was valid and binding and that it was signed in settlement of all claims or disputes that might emanate from the divorce action. The Regional Court granted the divorce order and dismissed the counterclaim. It held that the agreement was not entered into in contemplation of a divorce and that it would be against the public policy to allow parties to opt out of their marital regime without the mechanism provided for in section 21(1) of MPA. High Court The applicant applied to High Court for leave to appeal. The appeal was upheld by the High Court which overturned the decision of the Regional Court. It held that the agreement was enforceable since it had been concluded in contemplation of a divorce with its purpose being to constitute a settlement agreement. Supreme Court of Appeal The respondent appealed to the Supreme Court of Appeal. This court noted that since the parties did not approach a court in terms of section 21(1) of the MPA to sanction the change, the central issue was whether the agreement was made in contemplation of a divorce. It held that the applicant failed to prove that the agreement was concluded in contemplation of a divorce. The Supreme Court of Appeal upheld the appeal and set aside the order of the High Court. Constitutional Court The applicant approached the Constitutional Court for leave to appeal. In a unanimous decision, the Constitutional Court held that while the matter engaged the court’s jurisdiction, it was not in the interest of justice to grant leave to appeal. This was because the applicant introduced several constitutional issues in terms of contractual freedom, dignity, and unfair discrimination. She also had a constitutional complaint in the interpretation of section 21(1) of MPA. The Court held that these issues had not been ventilated in the other courts and this would in effect render the Constitutional Court a court of first and last instance. Furthermore, it was held that the Supreme Court of Appeal did not prescribe a bar on all agreements between spouses married out of community of property. The finding only related to the agreement at hand. The appeal was dismissed. Given the previously discussed legal context, it’s a well-established principle that spouses cannot modify an antenuptial contract after marriage without first obtaining court approval as outlined in section 21(1) of the Matrimonial Property Act (MPA). However, this restriction doesn’t prevent spouses who are married out of community of property from entering into other types of agreements. Reference list: section 21(1) of the Matrimonial Property System 88 OF 1984 J Heaton: South African Family law (3rd ed) AM vs HM 2020 (8) BCLR 93 (CC) Honey v Honey 1992 93) SA 609 (W) While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes. Powered by SucceedGroup
Does my maiden name automatically change if I get married in South Africa?
Marriage is a significant milestone in one’s life, bringing with it a multitude of changes and decisions. One such decision that often arises is whether to change one’s maiden name after tying the knot. In South Africa, as in many other countries, there are legal and personal considerations to contemplate when it comes to changing or retaining your maiden name. This article will delve into the intricacies of South African marriage laws and the process of changing or retaining your maiden name. South African marriage laws In South Africa, marriage is governed by the Marriage Act of 1961 and the Civil Union Act of 2006. These laws provide the framework for the legal aspects of marriage and dictate the options available for handling your name after marriage. The default option: No automatic name change Unlike some countries where marriage automatically changes a woman’s last name to her husband’s, South African law does not impose such an automatic name change. Upon marriage, your maiden name remains unchanged in the eyes of the law. This means you can continue to use your maiden name for all legal and official purposes if you wish. Electing to change your name If you decide that you want to adopt your spouse’s surname, you can do so through a legal process. This involves obtaining a Marriage Certificate, which is proof of your union, and using it to update your identification documents, such as your ID book, passport, and driver’s license. This process does not happen automatically; you must actively choose to make the change. Combining surnames or creating a new one South African law also allows couples to choose to combine their surnames or create a new surname altogether. This can be a meaningful way to honour both partners’ family names and create a unique identity for your family unit. Personal considerations While South African law provides the framework for changing or retaining your maiden name, the decision is deeply personal. Many factors come into play, including cultural traditions, professional considerations, and personal preferences. Some individuals choose to keep their maiden names for professional recognition or to preserve their identity, while others opt to take their spouse’s surname as a symbol of unity. Getting married in South Africa does not automatically change your maiden name. Instead, it provides you with the freedom to make a choice that best suits your personal circumstances. Whether you choose to retain your maiden name, adopt your spouse’s surname, combine names, or create a new one, the decision is yours to make, guided by both legal and personal considerations. Ultimately, the most important thing is that the choice feels right for you and your partner as you embark on this exciting journey together. While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes. Powered by Succeed Group
Navigating antenuptial agreements in South Africa: Your questions answered
Preparing for marriage in South Africa involves several critical decisions, one of which is the antenuptial agreement (AN). This legal document is vital for dictating the management of assets and finances within a marriage. To help you understand and effectively navigate antenuptial agreements, we’ve compiled answers to some commonly asked questions. Frequently asked questions about antenuptial agreements What is an Antenuptial Agreement? An antenuptial agreement, commonly known as a prenup, is a legal contract established before marriage, outlining the management of assets and finances during and potentially after the marriage. What are the types of antenuptial agreements in South Africa? With accrual: Shares the growth of each spouse’s estate during the marriage, considering only assets acquired after marriage. Without accrual: Each party retains their individual assets and liabilities, both during and after the marriage, often chosen when substantial assets are involved before marriage. Why is full disclosure of assets important? Full transparency in disclosing all assets and liabilities is crucial for creating a fair and valid agreement. How are future inheritances and gifts treated? The treatment of future inheritances and gifts—whether included in the joint estate or kept separate—should be clearly specified in the agreement. What about debts and liabilities? The agreement should outline how debts incurred before and during the marriage will be managed. How does business ownership affect an AN? The impact of business ownership on the marriage must be addressed, particularly vital for entrepreneurs and business owners. What are the legal requirements for an AN? The AN must be signed, notarised before the wedding, and registered at the Deeds Office within three months of the marriage. Can I draft an AN after getting married? Generally, an AN should be drafted before the wedding. However, changes are possible, but they require a court application and are subject to certain legal procedures. Both parties must agree to the changes. Changing your marital regime after the wedding can be costly, so it is advisable to draft your AN before marriage. How do I know if an antenuptial agreement is fair? A fair antenuptial agreement should reflect the interests of both parties equitably. It’s advisable to have independent legal counsel for each party to ensure fairness and validity. An antenuptial agreement is not just a legal formality; it’s a practical tool for managing your joint financial life. By considering these key points, couples in South Africa can enter into marriage with clarity and confidence about their financial future. Remember, seeking legal advice is essential in ensuring that your antenuptial agreement is fair, valid, and reflective of both parties’ wishes and needs. While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes. Powered by SucceedGroup
A child’s best interests and the adoption procedure
‘The best interests of a child’ is a concept deeply entrenched in our legal system – especially since the new constitutional dispensation. Section 28(2) of the Constitution provides that “A child’s best interests are of paramount importance in every matter concerning the child”. The best interest of a child is similarly of paramount importance in the adoption procedure. Adoption is the process whereby someone, over the age of 18, applies to court to be deemed as a child’s parent. The importance of recognizing the child’s best interests in the adoption procedure is acknowledged in the Children’s Act 38 of 2005 (“the Act”). The Children’s Act enunciates the purpose of adoption as to protect and nurture children by providing a safe, healthy environment with positive support, and to promote the goals of permanency planning by connecting children to safe and nurturing family relationships. If you are considering adopting, your first port of call should be to approach an adoption agency. The agency will screen you and ascertain whether there are any children available for adoption. If the agency is satisfied with the screening results, they will put you on a Register of Adoptable Children and Adoptive Parents. The agency will then call you to come into their offices if there are any children up for adoption. A social worker must conduct an interview with the purpose of compiling a report containing information on whether the child can be adopted, the eligibility of the prospective parents, medical information in relation to the child and whether the adoption is in the child’s best interest. The sheriff of the court must then serve a notice on the person(s) required to give consent to the adoption. The following person(s) must give consent to the adoption: Each parent of the child and/or every legal guardian must give their consent. If the child is older than ten years, they must also give consent. If the child is younger than 10 years of age, their consent will only be required if they have the maturity and understanding to consent to the adoption. Consent must be reduced to writing, signed by the person giving the consent and verified by the Children’s Court. A person who gave consent to an adoption, however, has up to sixty days to withdraw their consent after they have given it. There are certain circumstances when consent is not required. The application for the adoption of a child can be made in the Children’s Court and must be accompanied by the social worker’s report, a letter from the provincial head of Social Development, and the applicable consent forms. The presiding officer of the Children’s Court must take certain factors into account before considering whether to allow the adoption. Importantly, the presiding officer must consider whether adoption is in the best interests of the child. Section 242 of the Act states the following legal consequences of adoption: Full parental responsibilities and rights in respect of the adopted child are conferred upon the adoptive parent; The adoptive parent’s surname is conferred upon adopted child, except when otherwise provided in the adoption order; Any marriage and/or sexual intercourse between the adopted child and any other person which would have been prohibited had the child been the adoptive parent’s biological child, is not permitted. Any rights to property that the adopted child acquired before the adoption is not affected. The parental responsibilities and rights of the parent of the adopted child is not automatically terminated when an adoption order is granted in favour of the spouse or permanent domestic life partner of that parent. An adopted child must for all purposes be regarded as the child of the adoptive parent and an adoptive parent must for all purposes be regarded as the parent of the adopted child. The legal consequences would therefore be the same as that between a biological parent and child. This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)