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  • What is the effect of the accrual system in a marriage contract, on death or divorce?

    This is an example of a standard calculation at the death of the first-dying: 

    Note:  The Matrimonial Property Act 88 of 1984 is applicable to

    • every marriage out of community of property entered into on or after 1 November 1984 in terms of a antenuptial contract by which the accrual system is included or excluded; and
    • spouses married before 1 November 1984 out of community of property by antenuptial contract and before 1 November 1986 executed and registered a notarial contract applying the accrual system to their marriage in the deeds registry.

    The following assets are not considered in determining their respective accruals (are not included in the nett value of estate assets, in this example):

    • Any asset excluded from the accrual system under the antenuptial contract as well as any other asset which the spouse acquired by virtue of his/her possession or former possession of such asset.
    • An inheritance, legacy or donation which accrues to a spouse during the subsistence of the marriage, except in so far as the spouses may agree otherwise in their antenuptial contract or in so far as the testator/trix or donor may stipulate otherwise, as well as any other asset which has been acquired by the spouse by virtue of his/her possession or former possession of the inheritance, legacy or donation.
    • Any donation between the spouses is not considered in either estate.
    • Any amount which accrued to a spouse by way of damages (e.g. slander), other than damages for patrimonial loss.

    Example – accrual on death of first dying:

    At the commencement of the marriage, A declared R 100,000 and B nil in their antenuptial contract. At the dissolution of the marriage on A’s death the respective net market values of their estates assets are A R 3,000,000 and B R 100,000. At the date of the marriage the official Consumer Price Index was 120 and at A’s death it is 300:

    A’s estate:
    Net value (assets minus admin costs and liabilities) at death         3,000,000.00
    Less: Net value declared at commencement of marriage 100,000.00
    Adjusted for Consumer Price Index 300 X 100,000 ÷ 120                           250,000.00
    Net value of accrual (a)           2,750,000.00
    B’s estate:
    Net value (assets minus liabilities) at death of A                100,000.00
    Less: Net value declared at commencement of marriage                             nil
    Net value of accrual (b)                 100,000.00
    Difference between accruals: (a) 2,750,00 less (b) 100,000 2,650,000.00
    B is entitled to claim one-half thereof from the estate of A             1,325,000.00

     

     

  • Adoption Advice – can I adopt my friend’s baby?

    A client asked how she goes about adopting her friend’s child, soon to be born. The friend wishes to give up her baby for adoption.

    The biological parents would need to receive counselling from an accredited adoption social worker to look at all the options available to them when planning the future for their unborn child.

    Should they decide on adoption, they will be assisted to sign consent for the baby’s adoption, in a Children’s Court.

    The biological parents would have 60 days after signing the adoption consent to change their minds about the adoption.

    Its best that during this period, the baby is placed in a temporary safe care facility.

    As a prospective adoptive parent, you would need to go through a screening process with an accredited adoption agency or with an accredited adoption social worker in private practice which involves attending an orientation meeting, interviews with a social worker, a full medical with a doctor on our panel, a psychological assessment, a marriage assessment (if married or in a committed relationship), a home visit, police clearance and clearance from the Child Protection Register.  You would also be required to attend a full day’s training and preparation group.

    The screening can take between 5-6 months. There is a charge for all professional services and you would be responsible for paying the doctor and psychologist directly.

    The baby would remain in temporary safe care until the prospective adopters have completed the screening process and the baby has become adoptable.

    For more on this topic, go here: https://goo.gl/e2AHvJ

  • Sectional Title Owners – Who is responsible for Excess Payments on Insurance Claims?

    Owners in sectional title schemes believe – incorrectly – that because the body corporate insures the common property it must pay any insurance excesses (e.g. for a burst geyser)).

    In fact, the Sectional Title Act provides that the owner in a sectional title scheme is responsible for all excess payments on insurance claims – unless the body corporate has passed a special resolution that it will cover these, in certain special cases.

    Prescribed Management Rule 29 (1) requires the trustees to take reasonable steps to insure the buildings and all improvements to the common property to the full replacement value and must negotiate excess amounts, premiums, cover, and insurance rates on behalf of the body corporate.

    The most common insurance claims relate to damage caused by burst geysers and the problems they cause. Insurance companies often negotiate a higher excess amount for such claims, to reduce the overall insurance premium and claims.

    Most insurance companies have call centres set up to deal with the more common claims and on these cases no excess, or a considerably reduced excess, will usually be payable, provided the centre is contacted quickly and allowed to send one of their preferred suppliers to handle the work. Quick action by the owner can save unnecessary damage to the unit (and to other units).

  • Can new owners be held liable for historic municipal debt on their property?

    In the case of Jordaan v Tshwane municipality, the Constitutional court handed down a judgment on 29 August 2017, dealing with the constitutional validity of S118(3) of the Local Government Municipal Systems Act, which provided that “an amount due for municipal service fees, surcharges on fees, property rates and other municipal taxes, levies and duties is a charge upon the property in connection with which the amount is owing and enjoys preference over any mortgage bond registered against the property”.
    The Constitutional Court had to decide if this provision allows a municipality to claim the debts of a former owner from the new owner, and if so, whether this provision was constitutional.
    In this case, the applicants approached the High Court (and won) by alleging that it was unlawful for a municipality to suspend municipal services or refuse to conclude a consumer services agreement for municipal services until the historical debts relating to the property had been cleared.

    The municipality appealed to the Constitutional Court and lost. The court found that:

    • while a municipality has the constitutional obligation to collect revenue and pursue debtors, it can only claim the money from the actual debtor (previous owner) and cannot claim the historic debt from the new owners;

    • holding the new owners liable for the debt was an arbitrary deprivation of property.
    Presumably, this outcome will open the floodgates to many actions against the municipalities that recovered historic debt from the new owners.

  • Thinking of Getting Divorced?

    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

    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 roy@bregmans.co.za for more information.

     

     

  • The Divorce Process

    The divorce process – what is entailed

    Source: https://www.westerncape.gov.za/service/getting-divorced/

    A married couple can end their marriage through divorce. The process of the divorce depends on the type of marriage:

    • Civil marriages are dissolved according to the rules in the Divorce Act.
    • Marriages in terms of African Customary Law are dissolved according to the civil law but some of the consequences are determined by custom and tradition.
    • Muslim and Hindu marriages are dissolved in terms of the rites and rituals of the religion.

     

    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:

     

    Custody of the children (Primary residence)

     

    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.

     

    Access to the children (Contact)

     

    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).

     

    Maintenance

     

    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.

     

    Dividing property 

     

    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?

    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

    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 ...

  • Right to relocate with a minor from Gauteng to the Cape

    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?

    A:

    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.

    Please see http://www.bregmans.co.za/relocation-with-a-minor-child-within-or-outside-south-africa/

  • Freedom Of Testation

    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”.

    Testate succession

    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:

    • A provision in a will shall not be executed if (a) it is generally unlawful, (b) against public policy, (c) impracticably vague, or (d) impossible; and
    • The estate is obliged to support any minor and financially dependent children.

    There are certain acts that limit the testator’s freedom to choose his beneficiaries in his will, e.g.

    • In terms of the Pension Funds Act, the deceased can’t choose who to benefit. The decision will be up to the pension fund administrators;
    • A surviving spouse (who has been excluded from the will) may have a claim against the estate for maintenance in terms of The Maintenance of Surviving Spouses Act;
    • If the testator disinherits his wife, and they are married with the accrual system, the wife has a claim against his estate for ½ the difference between the accruals (if her estate is the smaller of the two).

    Intestate Succession

    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.

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Email: info@bmalaw.co.za

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