Thinking of getting divorced?
How divorce works
Once a married couple (whether married according to civil or customary law) has decided to get divorced, the person suing for divorce (the “Plaintiff”) needs to prepare a divorce summons, either through the High Court or the Family Court at a local Magistrates’ Court, suing the other spouse (“the Defendant”).
The person suing for divorce needs to show the court that the marriage has irretrievably broken down. Evidence to support this could be that the parties don’t love each other any longer, that they have been living apart for a long time, one partner has cheated, or that there was physical or mental abuse involved in the relationship. Other grounds of divorce are that one party is in a coma or is permanently mentally ill.
The summons would include details such as how you split assets, who the kids live with, maintenance, visitation rights and responsibilities and rights of the parents regarding the kids.
Ideally, the parties will enter into a written agreement of settlement, recording these issues, that is made a court order. In this way, the marriage will proceed on an unopposed basis. This is much cheaper and reduces conflict.
The Sheriff of the Court will serve the summons on the Defendant. In some cases, the Defendant may decide to oppose the summons, in which case his or her attorney will send back a Plea (answer to the summons).
If the matter is unopposed, the Plaintiff applies for a court date, and sets the matter down.
If the matter is opposed, the lawyers for each side will exchange ‘pleadings’ and will set the matter down once the matter is ripe for hearing. This could take years and will cost a fortune. Unless you have limitless funds, rather settle, with help from a friend, mediator, priest or pastor.
Using a lawyer
The most frightening aspect of instructing an attorney is the prospect of high legal fees. Relax. We charge an agreed fee with you, up front, and will not bill you for every phone call or by the hour.
We’ll meet with you and hold your hand throughout the process, help you decide on how to divide your assets fairly and work out what is best for your children. We’ll help you to minimize the cost and stress of a divorce. Our fee includes all consultations and putting together a settlement agreement that will be made a court order. If money is tight, we will accept reasonable instalments.
Interested? Email email@example.com for more information.
The divorce process – what is entailed
A married couple can end their marriage through divorce. The process of the divorce depends on the type of marriage:
Go here to see acts that apply to divorce and other family law issues.
There are several issues that need to be addressed in a divorce, including:
Before the court can allow the divorce to take place, the parents or court will have to decide who takes care of the children. This decision should be in the best interest of the children, and can be investigated by the Family Advocate.
If the divorce is taking a long time, an interim custody order can be issued setting out who will look after the children while the divorce is being finalised.
In African, Hindu and Muslim customary marriages, the wife usually takes custody of the children. According to African customary law, the father usually remains the children’s natural guardian. The children of Hindu and Muslim marriages are regarded as illegitimate, so the mother is also the natural guardian.
In all cases, both parents have a duty to support the children.
An agreement about when, where and how the parent will have access to the children will need to be made.
If it is not in the best interests of the children for the other parent to have access rights, then the court can restrict access (deny altogether or make it supervised).
See this useful article: https://goo.gl/rbh9g6
The court will issue a maintenance order requiring maintenance to be paid for the children.
If there are problems with maintenance after the divorce has gone through, these can be taken to the Maintenance officer at the Magistrate’s Court.
Whether one party will have to pay maintenance or support to the other party depends on the circumstances. If the parties cannot agree on how much should be paid then the court will decide.
Because Hindu or Muslim marriages are not fully recognised as legal marriages, the wife has no legal status to claim support after divorce.
How the family property will be divided depends on what property regime the couple adopted when they got married. This will usually be covered in the antenuptial agreement if there is one or, if there is no pre-marital contract, then it is determined by law.
The default legal position is that civil marriages are in community of property with accrual. This means that everything that you own is shared, including property and debts. Accrual means that everything that you earn or buy after you have married also becomes part of the joint estate.
If you get divorced, the shared property is divided equally between you. ...
Who is a legal guardian?
A client asked me when and how a person should appoint a guardian to look after minor children, on his or her death.
Why is it so important to appoint a legal guardian for your children?
On the death of the first dying parent, the surviving parent becomes the sole guardian. On his or her death, the legal guardian would be appointed. If the will does not nominate a guardian for the minor children, then a family friend or relative would have to apply to court, at some expense, to be appointed as the legal guardian.
Usually, the will provides that the person who will manage the trust created in terms of the will (the trustee), and looks after the children (the guardian) are one and the same.
Who should you appoint as a legal guardian (relative, best friend)?
Guardians nominated in a will can choose if they wish to accept the office of guardian. On that basis, you should always approach a close family friend or relative, you know you can rely on, and who will accept the office of guardian.
Ideally, the legal guardian should know the family well and can be depended on to act in the best interests of the minor children.
When does the guardian’s legal role end?
The legal guardian must administer the property that the minor children inherited, until each child attains majority (turns 18). The last dying parent may feel that a child of 18 is not mature enough to manage the property, and the will may provide that the guardian’s role will end only when the child turns, say, 21.
Would the guardian also be responsible for the children financially?
A legal guardian is entitled to be paid for administering the minors’ estate. This can be set out in a will or is determined in accordance with the tariff laid down by the Master of the High Court.
There should be sufficient funds in the trust, created in terms of the will, to provide for the maintenance of the minor children. It would never be the responsibility of the legal guardian to provide for them, financially. The last thing the parent would want is that the executor must sell a fixed property to raise sufficient funds to maintain the children. If it means taking out a life policy to provide for the children, that is a good idea.
‘Maintenance’ generally means maintenance, education (including higher education), vocational training, setting him up in a business or a profession, accommodation, holidays, travel, general welfare and benefit and reasonable pleasures.
The will should provide that the legal guardian does not have to put up security to exercise his duties and that he or she can manage the funds of the minor children. If the will is silent, the guardian is obliged to pay the cash funds into the Guardian’s Fund, managed by the state. In that event, the guardian would have to approach the Master of the High Court, cap in hand, for funds to maintain the children. This should be avoided at ...
Voetstoots and the CPA
Does the Consumer Protection Act, 2008 (“CPA”), which became effective on 1 April 2011, mean the end of the “voetstoots” or “as is” clause?
What does voetstoots mean
When you buy something, there is an implied warrantee that the thing sold is free from any defects. It is, however, possible that one can contract out of this implied warranty by inserting a term into the contract that says that the sale is voetstoots (that you buy the goods “as is” and cannot rely on the implied right to defect-free goods and complain later if you find certain defects in the goods).
When the seller can’t rely on the voetstoots clause
The common law does, however, allow you to cry foul and sue the seller (even if the contract contained a voetstoots clause) for cancellation of the contract or a reduction in the selling price where the goods were defective at the time of the sale, that the seller knew of the defect but failed to disclose it to the buyer, knowing full well that if the buyer knew about it he would either not have continued the purchase or would have negotiated a more favourable purchase price.
The effect of the CPA on the voetstoots clause
In terms of the CPA the consumer is entitled to receive goods that are reasonably suitable for the purpose for which they are generally intended, are of good quality, in good working order and free of any defects.
The definition of “goods” has been amplified to include a legal interest in land or other immovable property.
The CPA provides for a statutory duty of disclosure in consumer transactions. The Act expands on the common law obligation to disclose latent defects by requiring suppliers to disclose material facts and to correct misapprehensions on the part of the consumer, if failure to do so would amount to a deception.
However, sellers can exclude themselves from this obligation by advising the consumer that the goods are being offered in a certain condition. The consumer must then agree to accept the goods in that particular condition. E.g. a motor dealer should explain that the beat-up Volksie is not new, point out the obvious and not-so-obvious defects and if the consumer accepts this, then the sale would be as-is.
The only way sellers can get past the implied warranty is to describe the condition of the goods in specific detail to make it clear in which condition the goods are being sold. The buyer then has to has to “expressly agree” to accept the goods. Only if the buyer “knowingly acted in a manner consistent with accepting goods in (a less than ideal) condition” would the implied warranty of quality fall away. Every defect must be described in the contract of sale that the buyer signs.
A defect is a material imperfection that renders goods less acceptable or less practicable. This includes obvious problems, or latent defects, and those hidden future problems, or ...
Q: Been divorced for 8 years. Dual custody over our 2 children aged 16 and 11 who reside with mother.
Does the law require that the mother has to approach the court for permission to relocate from Gauteng to the Cape?
The test is what is in the best interest of the children.
As a rule, you have a right to relocate with the minor children, unless a settlement agreement or a court order says otherwise. However, if the father objects, you will have to approach a court, and satisfy it that the move is sound.
Can I choose who to benefit in my will?
In South Africa, a person can leave his or her assets to whoever he likes, with few limitations. This is called “freedom of testation“. If a person dies with a valid will, he or she dies “testate”, and without a valid will, he or she dies “intestate”.
An executor (the person appointed to wind up the estate) must carry out the wishes of the testator (the person making the will) as far as legally possible. The freedom of testation is limited by the common law in these situations:
There are certain acts that limit the testator’s freedom to choose his beneficiaries in his will, e.g.
If a person dies without a will, his or her estate is wound up in accordance with the Intestate Succession Act.
This is not a detailed exposition of the law but a mere synopsis. Contact your lawyer for comprehensive advice.
The Body Corporate switched off a client’s electricity, because he fell into arrears with his levies. He asked me what steps he could take to have his electricity switched back on.
I advised: I would suggest that you have a look at the conduct rules of your body corporate. I would be most surprised if they allow the trustees to have acted in the way they have done.
If the conduct rules don’t allow the trustees to cut off your electricity, you have two options. The first is to pay the amount that they claim, under protest, and then refer the dispute to the ombudsman:
The Sectional Title Ombudsman
1st Floor Building A, 63 Wierda Road East, Wierda Valley, Sandton
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This is a very recently appointed office and I have no idea what kind of response you will receive or how long the process will take. However, it will not cost you anything but time and effort.
Your second option is to go to your closest Magistrate’s Court to see if they assist people in your position to obtain what is called a spoliation order (to restore the electricity on a basis of urgency). Some courts do assist, without charge. If they won’t, you will need to approach an attorney for help.
If you can’t afford one, get help from the law clinic at your local university, the Legal Aid Board or check out www.probono.org.za
A client asked me how long couple must live together, before they are regarded as being in a common-law marriage.
In South African law, there is no such thing as a common-law marriage, no matter how long a couple may live together. Their cohabitation does not create any automatic legal rights and duties between them. This is a common misunderstanding.
In an age when most marriages fail, parties with a trail of prior relationships and marriages behind them may prefer to live together, rather than marry. Same-sex or heterosexual partners who choose not to get married should sign a domestic partnership (also called a life partnership or cohabitation) agreement to protect them should their relationship end. It is cheaper than ending up in court!
A widely-used definition describes “domestic partners” as “two adults who share an emotional, physical and financial relationship like that of a married couple but who either choose not to marry or cannot legally marry. They share a mutual obligation of support for the necessities of life.”
Cohabiting couples do not have the same rights as married couples under the law, so it makes sense to set out at the outset of the relationship what the division would be if the cohabitation breaks down.
The life partnership agreement will provide for such things as:
Universal Partnership Agreement
If parties live together but don’t conclude any form of agreement regulating their respective legal rights and obligations, on dissolution of the cohabitation, a party that feels he or she is entitled to something from the other party (who disagrees), must go to court, at some expense, to prove that entitlement. To do so, the party must prove they were in a ‘Universal Partnership’, so that one party is entitled to certain property and assets of the other ...
A client asked: What are the implications when folks get married in community of property after a property was purchased in any one’s name, draw up a will and one passes away?
If a couple get married in community of property, they share equally in the assets and liabilities of their joint estate (whether acquired or incurred before or during the marriage).
So, if the husband owned a property before the marriage, on death or divorce, the wife becomes entitled to half the net value of the joint estate (i.e. half of all their combined assets less all its joint liabilities).
What that means is that a spouse can only leave his or her half share of the joint estate, in a will. If a will says “I leave my estate to my mother”, “my estate” means his or her net half of the joint estate.
In the aftermath of a divorce, a person often forgets to amend his or her will. A bequest to your divorced spouse in your will, which was made prior to your divorce, will not necessary fall away after divorce.
The Wills Act provides that if you die within three months of the divorce, a bequest to your divorced spouse will be deemed cancelled (except where you expressly provide otherwise). Basically, this provision allows a divorced person a period of three months to amend his/her will, after the trauma of a divorce. Should you fail to amend your will within three months after your divorce, your divorced spouse will benefit as indicated in the will.
So, be warned, if you don’t want your ex to benefit any longer, change your will.
Bregman Moodley Attorneys Inc. 2015/089214/21
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