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South African Family Law
A Simple Guide to
A Simple Guide to South African Family Law Kathleen Nthabiseng Monareng LLB (Witwatersrand) 2008 .
siberink.co. Editing and indexing by Adrienne Pretorius Typesetting by G. du Toit Cover design by Angela Tuck.First Siber Ink edition 2008 Siber Ink CC PO Box 30702 Tokai 7966 Cape Town SOUTH AFRICA www.J.za ISBN 978-1-920025-26-7 This work first appeared in January 2008 as a book self-published by the author. Cape Town . recording or by any information storage and retrieval system. Cape Town Printed and bound by Creda Communications (Pty) Ltd. including photocopying. without permission in writing from the Publisher. electronic or mechanical. In terms of the Copyright Act 98 of 1978 no part of this book may be reproduced or transmitted in any form or by any means. who is grateful to Judge Belinda van Heerden for expert guidance that led to minor amendments being incorporated in this first commercially published edition. This book is copyright under the Berne Convention. HANDS-ON Media.
But equality cannot. mean only equality on paper or in theory. One of these realities is that many people in South Africa are unable to enforce their legal rights because they do not know what these rights are. what they mean in practice and how to protect them. Promoting and achieving equality — and.Contents v Foreword Equality. v . civil unions and other domestic relationships. human dignity and freedom are the bedrock on which the South African democracy stands firm. The Constitution outlaws unfair discrimination and guarantees every person in this country equality before the law and the right to the equal protection and benefit of the law. In easily readable. the other human rights protected in the Bill of Rights — requires an acute awareness of the lived realities of people’s lives. It provides a ‘legal map’ for individuals entering into — and terminating — marriages. That is simply not good enough. Without resorting to the ‘lawyers’ language’ that makes many books on family law difficult to understand for the non-lawyer. indeed. A Simple Guide covers those aspects of family law most likely to affect the lives of ordinary people. dealing with the children born of these relationships. and does not. clear and accessible language. the author sets out the South African legal framework governing the different forms of family and personal relationships that exist in our multicultural society. It is for this reason that A Simple Guide to South African Family Law is a publication as timely as it is admirable.
the book will educate and empower ordinary people. and in pastoral and community work. thus helping to realize the promise of the Bill of Rights in their daily lives. I warmly congratulate Nthabiseng Monareng on her initiative and vision in conceptualizing and writing A Simple Guide. and making arrangements to distribute property after death. and the publisher in making it available to the public in such a user-friendly and accessible form.vi A Simple Guide to South African Family Law coping with the difficulties of enforcing child and family support obligations. By arming readers with practical information about the content of their rights in this arena. B J van Heerden Judge of the Supreme Court of Appeal November 2008 . having to face the sad reality of the domestic violence which continues to plague our society. and guiding them through the procedures necessary to protect and enforce those rights. It will also be of great value to persons and organizations involved in training and education.
or how to go about accessing and enforcing them.Contents vii Preface Ignorance of the law is one of the greatest challenges facing ordinary South Africans. People enter into relationships on a daily basis. South African law does not recognize cohabitation relationships. Many people are losing out on what is legally theirs because they do not know what their rights are. This ignorance is due to the fact that a large number of people lack the correct information regarding many legal aspects governing their personal lives. you will be treated as boyfriend and girlfriend. the law will not regard you as a married couple. This perception is incorrect. did you consider what this meant to you legally? Do you ever think about the legal consequences that come with marriages and relationships? Are you in a common law marriage or a ‘Vat-en-Sit’ relationship? Do you know your rights? There is currently a perception that if you live with your partner for a certain number of months. have children. the law will regard the relationship as that of a married couple. no matter how many years you have lived together or even if you have children together. When you proposed marriage to your partner or your partner proposed to you. sometimes referred to as common-law marriages. If you are living with your partner unmarried. but they seldom take time to consult an attorney vii . move in with their partners. Just think about this. They enter into marriages.
adoption. I hope that the information that you will receive in this book empowers you and gives you the courage to make the right choices for yourself. custody. access. This book will guide you in the process.viii A Simple Guide to South African Family Law or a legal consultant to find out how this will affect them legally. independent or dependent. KatHleen ntHaBiseng Monareng November 2008 . Nothing in life is guaranteed! The aim of this book This book aims to educate and empower individuals by giving them legal information governing aspects of their private life. it is important that you take time to understand the legal consequences that come with relationships. domestic violence. It is a simple guide regarding aspects of family law that govern relationships and their subsequent termination. or any other dispute. It is also a guide for those who are undergoing court battles. but you need to think about this and consider the possibility that the relationship you are in might not turn out to be what you thought it would be. inheritance. maintenance. steps and procedures that you need to undertake. Regardless of whether you are a man or a woman. whether your partner is an ideal man or woman who loves you very much and you do not have any reason to think that he or she will change. I know this sounds unromantic. whether it is a divorce. sharing of assets. They often concentrate only on their emotions and neglect thinking about the legal and financial implications of their relationships.
. . . viii Introduction . . . . . . . . . . . . . . . . . . . . . . . 4 – Polygamous marriages . . . . . . • Marriage out of community of property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ix 13 13 15 15 17 18 18 19 . . . . . . . . . . . . . . . . . . . . . . . . . – Dissolution of the joint estate . . . 4 – Registration of customary marriages . . . . 1 • Civil marriage . . . . . . . . . . . . . . . . xv 1. . . . . . . . . . . . . . . . . • Administration of the joint estate . . . . . . . . . Marriage . . . – Protection between spouses . . . 11 – Registration of same sex unions .Contents ix Contents Foreword . . . . . . Financial Consequences of Marriage . . . . . . . . . . . . . . . . . . vii • The aim of this book . . xv • What is family law? . . . v Preface . . . . . . . . . . . . 12 2. – Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 • Customary marriage. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . – Assets . . . . . . . . . . . . 13 • Marriage in community of property . . . . . . . . . . . . . . . . . . . . . . . . . . 12 • General notes about marriage . . . . . . . . . . . . . . . . . 12 – Legal consequences of a civil union . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 • Same sex unions . . 1 – Marriage of a minor child . . . . . – Marriage out of community of property with accrual . . . . . . . . . . . . . . . . . .
. . . . . • What is divorce?. . . . . . . . . . . . . . . . . . • Entitlements after divorce . . . . – Spousal maintenance . . . . . . 20 21 21 22 23 24 24 24 25 25 25 27 27 27 27 28 29 29 39 3. . . . . . . . . . – Sharing of assets and debts . . . . . . . . . . . . . . . . – Family court . . . . .x A Simple Guide to South African Family Law – Marriage out of community of property without accrual . . . . . . . . • Causes of divorce . . . . . . . . . . – Forfeiture of patrimonial benefits . . . . . – Postnuptial agreement . . 40 – Examples of the difference between cohabitation and marriage. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . – Procedure for making the application . . . . . . . . . . . . . . . . . 43 • Dissolution of a cohabitation relationship . . • Difference between separation and divorce . . . . . . . . . . . . . 46 . . . . . . . . . . . . . . . • General notes about divorce . . . . . . . . . . . . . . . 41 • Rights of cohabitants . . . . . . . . . . . . . . . . . . . . . 24 4. . . Cohabitation (‘Vat‑en‑Sit’) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . – Irretrievable breakdown of the marriage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 • Cohabitation agreement . . . . . . . . . . . . . . . • Divorce procedure . . . . . . . . . . . . . . . . . . . . . • Custody of and access to children . . . . . . . . . . . . . . – High Court . . . . . . . . . . . . . 40 • Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • General notes about financial consequences of marriage . . . . . . . . . . . . . . . – Mental illness or unconsciousness. . . . . Divorce . . 40 • Difference between cohabitation and marriage. . . . . . . . . . . . . . . . . . . . . . . • Changing the matrimonial property system . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 • General notes about cohabitation . . . . .
. – Rights of a parent whose child has relocated . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . – Consequences of adoption . . . . . . – Procedure for adopting a child . . . . . . . . . . . . . . . . . . . . . – Criteria for adoption . . . . – Custody (care) . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Adoption . . . . . . . . Children . . . . . . . . . . . . .Contents xi 5. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . – Relocating with the child within South Africa . . . . . . . . . . . . . . . . . . . . . – Parental responsibilities and rights of fathers. . – Guardianship . . . 47 • Parental responsibilities and rights . . . . . . . . . . . . . . . • General notes about children . . – Matters the Children’s Court may deal with . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . – Best interests of the child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 47 48 49 49 49 50 50 51 51 51 52 53 54 55 62 62 62 62 63 63 64 64 64 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . – Formalities of a parenting plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . – Parental responsibilities and rights . . . . . . . . . . . . . . . . . . • Relocation with a minor child within or outside South Africa. . . . . . . . . . . . . . . . . . . . . . . . . – Maintenance . – Taking the child out of South Africa permanently . • Interference with parental rights . . . . . . . • Parenting plan . . . . . . . . . . . . . . . . . . . . . . – Parental responsibilities and rights of mothers . . . . . . . . . – Joint custody (joint care) . . . . . . . . . . . . . . . . – Access (contact) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Children’s Act 38 of 2005 . . . . . . .
78 . . . .xii A Simple Guide to South African Family Law 6. . . . . – Maintenance during marriage . • Maintenance of a child by grandparents . . . . . . . . . . . . . . – Maintenance after divorce . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • General notes about spousal maintenance . . . . . . . . . . . . . . – Procedure for getting maintenance . . . . . . . . . . . . . . . . . . . . • Spousal maintenance (maintenance between spouses) . . . . . . . . . – Steps for claiming maintenance in court. . . . . . . . . . . . . . . . . . . . . – Maintenance hearing . . . . 65 • What is maintenance? . . . . . – Token maintenance . . . – Stage 3: Abuse stage . . . . . . . . . . . . . – Stage 2: Tension stage . . . . . . . . . . . . . . . . – Economic abuse . . . . . . . . . . . . • Child maintenance . . . . . . . . . . . . . . . . . . . . . . . . • General notes about maintenance of children . . . . . . . . . . . . . . Domestic Violence . . . . – Stage 1: Honeymoon stage . . . . . . . . . . . . . . . . . . . . . . – Physical violence . . . . . . . . . . . . . . – Payment of maintenance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . – Emotional and psychological abuse . . . . . . . . . . . . • Stages of domestic violence in a relationship . . . . . . . . – Duration of child maintenance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Maintenance of parents by their children . . . – Maintenance after death . . . – Sexual abuse . . . . . . . . . . . Maintenance . • Forms of domestic violence . 65 65 65 66 67 67 70 70 70 71 72 73 73 73 74 75 76 78 78 78 79 79 80 80 80 80 80 81 7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . – End of duty of support . . – Other forms of abusive conduct . . . • What is domestic violence? . . . . . . . . . . .
. . . . . . . . . . . . . . . . . – Maintenance . – Procedure to follow . . . . . . . • Introduction .Contents • The abuse cycle . . . . . . . . . . . . . . . . . . . . . . Inheritance and Wills . . . . . . . . • General notes about inheritance and wills . . . . . . . . . 87 Appendix . . . . . . . . . . . . . . . – Drafting a will . . . . . . . . . . . . . . – Advantages of a shelter . . . . . . . . – Who can apply for a protection order? . – What happens to the abuser? . . – What is a shelter? . . . . . . . . . . . . . . . . . . . – Violation of the protection order . . . – Getting a protection order . . . . . . . . . . . . . . . . . . . . . . . . . . . • Testate succession (dying with a will) . . . . . . . . . . . . . . . . . . . . . . . . • Shelter . . . . . – Marriage/family problems . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • How to get out of an abusive relationship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Protection order . . . . . . . . . . . . . . . . . . . . . . . . . • Useful contact details . . . . – Domestic violence . . . . . . . . . . . . . . . . . . . . . . . . . . . – Why do abused people find it difficult to leave an abusive partner?. . . . . . . • General notes about domestic violence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . – Cancelling the protection order . . . . . . . . . . . 97 . . . . . . . . . . . . . . . . . . . . . . . – Procedure for inheriting intestate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Intestate succession (dying without a will) . . . . . . . . . . . . . . . . . . . . . – General legal matters . . . . . . . . . . . . . . . . – What is a will? . . . . . . . . . . . . . . . . . 81 81 82 82 82 84 84 85 85 85 86 86 86 86 87 87 88 90 91 91 91 95 97 97 97 97 97 xiii 8. • General notes about intestate succession . . .
98 Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .xiv A Simple Guide to South African Family Law Bibliography . . . . . . . . . 100 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98 • Books . . . . . . . . . . . . . . . . . . . . . 98 • Internet websites . . . . . . 98 • Legislation . . . . . . . . . . . . . . . . . . . . .
and also to ensure fairness between the parties in family disputes. It consists of different aspects.Contents xv Introduction What is family law? Family Law is an area of law that regulates private relationships. dissolutions and death. children as well as third parties. • To educate you about child and spousal maintenance. • Finally. each with its own requirements. • To educate you about parental rights and responsibilities. which aim to protect couples who are in a relationship. • To educate you about divorce and separation. to educate you about inheritance and wills. as well as about adoption and the responsibilities and rights of unmarried parents. • To educate you about cohabitation: what the law says and how you can protect yourselves. xv . including care (custody). The aim of this book is: • To educate you about the different types of marriages recognized by law. and guardianship. contact (access). • To make you understand what domestic violence is and how to get out of an abusive relationship.
public place or private house. • The marriage must be solemnized by a duly appointed marriage officer. South African marriages are legally protected. and certain benefits are given to spouses upon the conclusion of a marriage. although you and your spouse do have the duty to support each other Civil marriage In order for a marriage to be legally recognized. if you are married out of community of property without the accrual system. with open doors and in the presence of at least two witnesses.Marriage ChaPter 1 1 Marriage Marriage is one of the most important steps that a couple can take. These benefits include the duty to support each other. DD the right to share in each other’s assets depends on the kind of matrimonial property arrangement that you and your partner entered into. for example a duly appointed minister of religion. you do not have the right to share in your spouse’s assets. the following requirements have to be complied with: • The solemnization of the marriage must be held in a church. For example. Home Affairs official or marriage officer such as a magistrate. to claim spousal maintenance and the right to have a share in each other’s assets. 1 .
As soon as the marriage has been solemnized. The marriage officer will issue the married couple with a marriage certificate. • If divorced. The marriage officer will then submit the marriage register to the department of Home Affairs for recording. the final decree of divorce. together with two witnesses. the couple. must sign the marriage register. that partner’s passport is required. • The couple must agree to be married to each other and must declare their willingness in the presence of the marriage officer and witnesses. Marriage of a minor child DD minor is a child under the age of eighteen years. • If widowed. Documents required • Identity documents or an affidavit in a prescribed form. It DD is important for each person entering the union to understand the legal consequences of a marriage and ensure that they comply with the legal consequences.2 A Simple Guide to South African Family Law DD Make sure that the person who is conducting the wedding is in fact legally entitled to perform the wedding or else you risk the chance that your marriage may not be legally recognized. a . the death certificate of the deceased. If one of the partners is not a South African.
the child has to ask for consent from the Commissioner of Child Welfare. The minor child can also apply to have the marriage set aside while he or she .Marriage A minor can get married only when the following requirements have been complied with: • Written consent from both parents must be obtained. When a minor gets married without getting the required consent. legal guardian or Commissioner of Child Welfare. apply to the High Court to have the marriage set aside. • The court will not give consent unless it is in the best interests of the minor child to get married. or any other reason). 3 The parents or guardian of the child must. • If consent is not obtained from the parents. insanity. • If a legal guardian is raising the child. owing to their absence. If only one parent has guardianship. the child has to apply to the High Court for consent. • If the minor child has no parents or legal guardian or they are unable to give consent (for example. his or her written consent is required. This applies when both parents have guardianship of the child. that parent’s written consent is required. within six weeks of learning about the marriage. the marriage will be legal unless it is dissolved (set aside) by the court. the DD court will make an enquiry to ascertain whether the marriage is in the best interests of the child and will set aside the marriage only if it is not in the child’s best interests.
In terms of the RCMA. • Both must agree to marry each other under customary marriage law. their marriage will be regulated by custom and tradition. when the Recognition of Customary Marriages Act (RCMA). • The marriage must be negotiated and entered into in terms of custom. and it includes the payment of lobolo. and customary rituals must also be held to complete the process. Requirements • Both of the marrying persons must be at least eighteen years old. For the marriage to be valid there must be payment of lobolo. when no longer a minor). Customary marriages were not regarded as legally valid marriages until 15 November 2000. Requirements • A husband who is married and wants to take another wife has to make an application to the High Court. Marriages entered into on or after 15 November 2000 are governed by the RCMA. which regulates customary marriages. was adopted as law. The . Polygamous marriages The RCMA allows a man to have more than one wife. where couples entered into marriages before 15 November 2000. Customary marriage Customary marriage is a marriage concluded in accordance with black people’s traditions and customs.4 A Simple Guide to South African Family Law is still a minor or within three months of becoming an adult (that is. This means that lobolo alone is not sufficient.
if the wife or wives the husband is married to will be prejudiced by his taking another wife. a couple has three months to register their customary marriage. The aim of making the application to court is: • To see whether the husband intends all or only some of the wives to benefit from his estate. Problems relating to non-registration • Your spouse might deny the existence of the marriage. thereby refusing to allow the husband to take another wife. Should the husband marry another wife without making the application to court. • If you are not happy in the marriage and you want to get out of it. This will result in the second wife losing out on the benefits given to married spouses.Marriage court has to approve a written contract that will regulate the matrimonial property system of the marriages. The court can refuse to grant the order. the marriage is still legally recognized. This means that if you are in a customary marriage and you did not register your marriage. there is a high possibility that the second marriage will not be legally recognized. 5 Registration of customary marriages In terms of the RCMA. • The application has to be made before the prospective/proposed subsequent marriage takes place. but non-registration does not make the marriage illegal. you need a registration certificate in . • To ensure that there won’t be any prejudice suffered by the wives.
DD Court means a high Court of South africa or a Family Court. together with witnesses from each side of the family. This helps to prevent fraud. must go to Home Affairs to register the marriage.6 A Simple Guide to South African Family Law order to file for a divorce. also see the note below. it is sufDD ficient to take the Lobolo agreement to the court to start the registration process. . • The couple or spouse must have with them the Lobolo Agreement. Registration of customary marriage within three months of the marriage • The married couple. • If one spouse refuses to have the marriage registered. such as the eastern Cape. The officers at Home Affairs might investigate in order to make sure that the parties are married to each other. the founding affidavit. the other spouse can go and have the marriage registered alone. Your spouse might refuse to register the marriage at that stage. and not just a magistrates’ court. Registration of customary marriages three months or more after the marriage • The married couple or a spouse has to go to court and make an application to have the marriage registered. and affidavits from at least two family members who can confirm that the marriage did take place. thereby making it difficult for you to file for divorce and for you to get the benefits you are legally entitled to. Note: In some areas. accompanied by witnesses.
you will get a return of service from the sheriff.Marriage • They will sign a notice of motion and attach the Lobolo Agreement and affidavits. It is important to note that there is no specific format for the founding affidavit. • Make three copies and get a court stamp. • Take the return of service and go back to court to apply for a court date. An example of a founding affidavit is set out on the next page. 7 DD Note: the department of home affairs no longer sup- plies copies of the founding affidavit. and that the wording differs depending on cases and courts. They created their own forms. • Have these documents delivered to the sheriff of the court. • Once the documents have been served. This one is from the Johannesburg Family Court and is used by Johannesburg courts only. and so far they have succeeded in having magistrates order late registration of customary marriages. you must go to court and appear on that date. • Once you have a court date. and people whose marriages are not yet registered are having a hard time trying to have the unions registered because of the uncertainty regarding forms/documents that are needed (and what procedure is required). • The sheriff will serve the document to the other spouse. . This is the day the magistrate/ judge will decide on whether to order the marriage to be registered or not.
. . – We both consented to be married to each other.8 A Simple Guide to South African Family Law Example of founding affidavit FOUNDING AFFIDAVIT IN THE CENTRAL DIVORCE COURT (HELD AT JOHANNESBURG) CASE NO: … In the matter between: . and . 2. . . . . . …(id no)… was married customarily to …(naMe)… . . . . . . Applicant Respondent FOUNDING AFFIDAVIT 1. . 120 of 1998 that the marriage be registered. . . – An amount of R … was paid as lobolo by the Respondent’s family and a certified copy of the Lobolo Agreement is hereto attached. . . . . . . . I. . . . . …(id no)… on …(date)… at … (place)… and the marriage still subsists. . . . . APPLICANT therefore requests the court to grant an order in term of section 4(7)(a) of the Recognition of Customary Marriages Act No. . namely: – The Respondent and I were older than 18 years in that I was … years old and the Respondent was … years old. . . …(naMe)… . – The Respondent and I have been staying together as a married couple for … years. . . . At the time of the marriage all requirements for validity of a customary marriage were complied with. . .
.. .. . . ..... and . Applicant Respondent NOTICE OF MOTION KINDLY TAKE NOTICE THAT … (hereinafter referred to as the Applicant) intends to make application to this court for an order in the following terms: 1... . . .. . .Marriage Dated at … on this … day of … 200x .. .. . has no objection to the prescribed oath and considers the oath as binding on her conscience. .... .. ..... . . .. .. 120 of 1998. ...... .... .. Applicant Applicant has confirmed that she understands the contents of this affidavit. . . That the Customary Marriage entered into between the Applicant and Respondent be registered in terms of section 4(7)(a) of the Recognition of Customary Marriages Act No. .. . . . Commissioner of Oaths 9 Example of a notice of motion NOTICE OF MOTION IN THE CENTRAL DIVORCE COURT (HELD AT JOHANNESBURG) CASE NO: … In the matter between: . ... . . . . .. . ... . . ...
...... Central Divorce Court Private Bag X6. that you are required to appoint in such notification an address at which you will accept notice and service of all documents in these proceedings..... 2.... 2048 And to Respondent’s Attorney .. Applicant’s address To: The Registrar. the matter will without any further notice to you be placed on the roll for hearing at least ten (10) court days after service of this notice upon you.10 A Simple Guide to South African Family Law 2. If no such notice of intention to oppose is given. Dated at … on this … day of … 200x .... letters and/or other correspondence. TAKE FURTHER NOTICE THAT. Such alternative relief as the honourable court deems fit in the circumstances. on a day fixed by the Registrar.. to file your answering affidavits......... if any....... and further. To notify the Applicant/Applicant’s Attorneys in writing within fifteen (15) court days after service of your notice of intention to oppose the application... PLEASE FURTHER TAKE NOTICE THAT the Defendant hereby appoints the address hereunder as the place where he or she will receive all notices... Ferreirasdorp....... AND TAKE NOTICE THAT the accompanying affidavit of the Applicant will be used in support hereof. if you intend to oppose this application you are required: 1.
• A person who is married under a civil union is not allowed to enter into a civil marriage (that is. religion and belief to solemnizing a civil union between persons of the same sex.Marriage 11 Same sex unions Same sex unions refer to the marriage or union of two people of the same sex. • No marriage officer may solemnize a civil union unless each of the parties in question produces to the marriage officer his or her identity document or the prescribed affidavit. • The union must be solemnized in a public place or private house or other premises. • A person can be a spouse in only one civil union at a time. Requirements • Parties must be eighteen years or older. with open doors and in the presence of at least two witnesses. must produce a certified copy of a divorce decree or death certificate of the former spouse. marriage under the Marriage Act) or a customary marriage. . • A spouse who was previously married under the Marriage Act. a DD marriage officer may in writing inform the Minister of home affairs that he or she objects on the ground of conscience. the marriage officer will then not be compelled to solemnize such civil union. or was a party to a customary marriage or a civil union.
• The marriage officer. and the laws regarding the matrimonial property system also apply. 2. . • The marriage officer will issue a registration certificate to the couple stating that they have. and the marrying couple must sign the registration certificate. Legal consequences of a civil union The legal consequences of a civil union are the same as those found in civil and customary marriages.12 A Simple Guide to South African Family Law Registration of same sex unions • The union must be registered in order for it to be legally recognized. • Each partner must individually and in writing declare their willingness to enter into the civil union. 1. under the Civil Union Act. Do not rush into a marriage. two witnesses. entered into a marriage or union. enter into a marriage once you are happy that you have enjoyed your single life and you are now ready to share your life with someone else. General notes about marriage DD registration of a marriage is very important. This means that the rights that married spouses automatically get by virtue of being married to each other also apply to civil unions.
the most important decision they have to make is to decide under what matrimonial property system they are going to marry. Under community of property. they need to decide if they are going to get married in community of property. The following will be excluded from the joint estate: 13 . with accrual or without accrual. That is. the couple become joint owners of all the assets (property and money) and liabilities (debts and claims) they acquired before they got married and also those they acquire during the marriage. Marriage in community of property Marriage in community of property applies automatically when a couple enters into a marriage and they do not sign an antenuptial contract excluding community of property. Assets Not all assets form part of the joint estate.Financial Consequences of Marriage ChaPter 2 13 Financial Consequences of Marriage When a couple decides to marry. or out of community of property.
3. If a parent does not state this in a will. Assets excluded by will If a parent leaves an inheritance for his or her child in a will. The couple have to sign an antenuptial contract excluding the house from the joint estate. 4. the rent will form part of the joint estate unless it is stated in the antenuptial contract that the rent will not form part of the joint estate. the inheritance will form part of the joint estate. or damages for pain and suffering in a personal injury claim. that parent has to state specifically in the will that the inheritance should not form part of the joint estate of the child and his or her spouse. Non-patrimonial damages This is money acquired by a spouse for a delict committed against them where the money is awarded for loss other than financial or property loss. for example damages for harm to their good name and reputation in an action for defamation. Engagement gifts These are gifts couples give to each other and also those they get as a result of their engagement. the husband has a house. 2. Assets that have been excluded from the joint estate in the antenuptial contract For example.14 A Simple Guide to South African Family Law 1. . He decides that he does not want it to form part of the joint estate. If the husband rents out the house.
the creditors can attach the assets of both spouses irrespective of whether or not the assets form part of the joint estate. . Administration of the joint estate There are certain transactions that both spouses must agree to before they can be performed. mainly creditors. personal loans. car loans. if there is insufficient money. and so on. if there is one. the creditor need not first try to recover the money DD from the separate assets of the spouse who incurred the debt. Liabilities Liabilities incurred before the marriage and during the marriage become part of the joint estate. In all other cases. This includes student loans. the creditor can: • recover the debt from that spouse’s separate estate. unless the claim is for damages for a delict committed by that spouse. the creditor has the right to sue both spouses jointly and to recover the money from the joint estate.Financial Consequences of Marriage 15 Be alert! DD although some assets do not form part of the joint estate. • recover the money from the joint estate. If one of the spouses owes creditors. or. bonds. When one of the spouses has been sued and is liable for a debt. this applies to the spouses themselves and does not affect third parties.
fixed deposits. DD Written consent must be witnessed by two witnesses. insurance policies. If a spouse enters into a transaction without obtaining the written consent required. money obtained from his separate property. mortgage bonds. if the third party knew or could reasonably have known that the spouse did not have consent from the other spouse. • Signing as a surety for someone else. • Ceding or pledging shares. that transaction may be declared invalid. • Selling or giving away furniture or household goods. • Taking out a mortgage bond on a house or other building or land forming part of the joint estate. or money he or she won in a prize. investments forming part of the joint estate. donations. for example rent. • Entering into a hire purchase or other credit agreement. • Withdrawing money credited in the name of the other spouse in any bank account.16 A Simple Guide to South African Family Law Written consent is required from both spouses in the following instances: • Selling or buying a house or other building or land forming part of the joint estate. Verbal consent is required in the following instances: • Obtaining your spouse’s remuneration. There are times where a spouse will enter into a transaction with a third party without the consent of a spouse and the third party did not know and could not . inheritances.
If a spouse wants to enter into a transaction and the other spouse withholds the consent.Financial Consequences of Marriage reasonably have known that the consent was not given. That means that the other spouse who did not give consent will be bound by that transaction. 17 Protection between spouses 1. the spouse who requires the consent can apply to the High Court for permission to continue with the transaction without the other spouse’s consent. the latter spouse can apply to court to have the joint estate divided immediately. This means that an adjustment has to be made when the joint estate is divided at the end of the marriage so that the money lost can be recovered from the other spouse. 2. and the other spouse fears that he or she will suffer serious prejudice. If one of the spouses is reckless with the assets of the joint estate. – No other person will be prejudiced if the estate is divided at that stage. The spouse who suffers financial loss as a result of a transaction which he or she did not consent to can claim back the share of the money he or she lost at the dissolution of the marriage. The applicant must show the court that: – His or her interest in the joint estate is being seriously prejudiced or will be prejudiced because of the conduct of the other spouse. or is misusing money. 3. In this case the transaction will be valid. . The court will give the consent if it is satisfied that the other party is being unreasonable.
they have to conclude an antenuptial contract. This is a contract that a couple signs before they get married. Marriage out of community of property If a couple decides to get married out of community of property. In it they exclude community of property or certain benefits that they do not want to form part of the joint estate. even if he or she did not contribute anything. • Divorce. . • Your spouse may incur debts without your knowledge and these debts may form part of and be recoverable from the joint estate. Dissolution of the joint estate Dissolution of the joint estate will occur under any of these three circumstances: • Change from in community of property to out of community of property.18 A Simple Guide to South African Family Law Advantage of community of property • You and your spouse share assets and liabilities equally. The couple have to decide if they want the accrual system to apply to their marriage or if they want their marriage to be without the accrual system. • Death. Disadvantages of community of property • Your spouse will be entitled to a half share of your estate.
Example of the accrual system Mpho and Thabo are married out of community of property with the accrual system. and the spouse whose estate has grown less than the other’s estate during the marriage will get half the difference between the growths in their respective estates. has fallen by 10% over those three years) the recalculated net commencement value of Mpho’s estate is now R11 000 (R10 000 × 1. At the time of divorce. the value of each spouse’s assets obtained during the marriage will be calculated. Three years later they decide to get a divorce.Financial Consequences of Marriage 19 Marriage out of community of property with accrual • During the marriage each spouse controls his or her own assets.10). Thabo had R50 000 and no debts. and is responsible for his or her own debts. Calculation of the accrual Mpho • Net value at time of divorce: R80 000 • Minus net commencement value: R11 000 • Accrual: R69 000 . Taking into account the decline in the value of money over the period of their marriage (say the value of money. When they got married. Mpho’s net estate is R80 000 and Thabo’s net estate is R250 000. Mpho had assets worth R10 000 and no debts. • On the dissolution of the estate.10) and that of Thabo’s estate is R55 000 (R5 000 × 1. measured using the Consumer Price Index. by death or divorce.
• Each spouse is free to do as they want with their assets and they do not have to get the consent of the other spouse to enter into transactions. Thabo’s accrual is higher than that of Mpho. what he or she owned at the time of the marriage. Marriage out of community of property without accrual If spouses do not want to share each other’s assets and debts and upon the dissolution of the marriage they do .20 A Simple Guide to South African Family Law Thabo • Net value at time of divorce: R250 000 • Minus net commencement value: R55 000 • Accrual: R195 000. Mpho will receive R63 000. • One spouse can leave the marriage with a substantial amount of money and a large estate while the other leaves with a smaller amount and smaller estate. that is. but no sharing of what the other spouse brought into the marriage. Advantages of community of property with accrual • Creditors of one spouse cannot attach the other spouse’s separate estate. As a result. Mpho will claim half the difference from Thabo’s estate. R195 000 – R69 000 = R126 000 Divide into two (2) = R63 000. • Spouses are liable for their own debts. Disadvantages of community of property with accrual • There is equal sharing of the growth of the spouses’ estates during the marriage.
or even more. Creditors of one spouse cannot attach the other spouse’s estate. you get your whole estate. Changing the matrimonial property system It is possible for a couple to change their matrimonial property system. or the other way around. . Disadvantage of community of property without accrual • If you are not working and were financially dependent on your spouse. they must specify in the antenuptial contract that they want their estate to be out of community of property without the accrual system. from community of property to out of community of property. It can cost from r15 000 to r30 000. You may get only spousal maintenance. and on the dissolution of the estate. Be alert! DD is important to note that it is an expensive procedure It to change your matrimonial system. • Spouses are liable for their own debts. you will not be entitled to any property from his or her share. Postnuptial agreement Married spouses have to make a joint application to the High Court for an order known as a postnuptial contract. 21 Advantages of community of property without accrual • You do not share your assets with your spouse.Financial Consequences of Marriage not want to share anything. upon the dissolution of the marriage.
6. 4. • The spouses must give notice of the proposed change to all their creditors. • The spouses must show that no other person will be prejudiced by the change. 5. This has to be accompanied by the draft document of the postnuptial contract. In the application: • The spouses have to show that they have good reasons for wanting to change from in community of property to out of community of property. or from out of community of property to in community of property. The spouses must show the court that creditors will not be affected by the change. 3. If the creditors object to the change and show that they will be prejudiced if the matrimonial property system .22 A Simple Guide to South African Family Law Usually an attorney or advocate is needed to make the application. Creditors must be informed about the application. The application to change the system has to be made to the High Court. assets and liabilities to enable the court to decide whether there are good reasons to make the change and that no one will be prejudiced by the change. Procedure for making the application 1. The notice must also be published in the Government Gazette and in two of the local newspapers at least two weeks before the application will be heard in court. The spouses have to give information about their finances. 2. A notice of the application has to be given to the Registrar of Deeds.
after this three-month period. a court application must first be made to register the antenuptial contract. If you are about to be married. You cannot conclude an antenuptial contract once the marriage has taken place. 23 General notes about financial consequences of marriage DD antenuptial contracts have to be signed by the 1. 3. they must be registered at the Deeds Office within three months from the date of the marriage. 4. the court will not allow the change. . Their matrimonial property system will then be the one set out in the postnuptial contract. the couple must register their postnuptial contract at the Deeds Office. the antenuptial contract can be registered with the consent of the court. or may allow the change with conditions. parties before an attorney called a notary before the marriage takes place. 2. If the court grants permission to change the property system. think carefully about the matrimonial property system that you want to enter into. and this is expensive.Financial Consequences of Marriage is changed. Do not enter into a system that will prejudice you in the future.
• The parties no longer love each other. Examples of irretrievable breakdown • The spouses have not lived together as a married couple for a period of time. but only two are recognized in South African law. Irretrievable breakdown of the marriage When a marriage has broken down irretrievably. • A spouse has had sexual relations with someone else and the other spouse finds it difficult or even impossible to continue with the marriage relationship. • A spouse is an alcoholic or a drug addict. • The marriage is abusive. this means that the couple can no longer live together as husband and wife.24 A Simple Guide to South African Family Law ChaPter 3 Divorce What is divorce? A divorce means that a couple legally ends their marriage or union. 24 . Causes of divorce There are many reasons for people deciding to divorce. Their relationship has become so bad that they must separate.
custody. access. or maintenance. three copies have to be made and given to the registrar or clerk . a spouse has to write the reasons for filing for a divorce. division of the joint estate. • Once the forms have been completed. for example. • These forms consist of a summons. with particulars of claims attached.Divorce • Any other circumstances where a spouse makes it impossible to continue with the marriage. • The last page consists of the prayer section. redistribution of assets. • In the particulars of claims. forfeiture of benefits. 25 Mental illness or unconsciousness • When a spouse has been admitted to a mental institution. and a statistics form. Divorce procedure Family court • The spouse who files for a divorce is called the plaintiff and the other spouse is called a defendant. Here a spouse has to state what he or she is claiming. • When a spouse is permanently unconscious. • If the spouse does not have a lawyer to assist him or her. a decree of divorce. The clerk will give the spouse forms to complete. • A spouse who files for a divorce and who does not have a lawyer to represent him or her has to go to court and inform the registrar or the clerk of the court that he or she wants to file for a divorce. that spouse may request the registrar or the clerk to assist them in preparing the documents required.
the defendant states his or her objections to the summons and what he or she wants to claim from the other spouse. the divorce will be finalized. within 10 court days after filing and serving the notice of intention to defend. Once the defendant has been served with the summons. The registrar or the clerk will stamp all copies and allocate a case number. when both parties will appear in court. After all the documents have been filed in court. A defendant has one month to file a notice of intention to defend the divorce. There is then a strong possibility that during the hearing the plaintiff will be given whatever he or she claimed. The registrar or the clerk will keep one copy. he or she has a choice of either defending the divorce or not. On the hearing day. he or she must. If the defendant chooses not to defend the divorce. If the defendant decides to defend the divorce. a date for the divorce hearing will be set. The plaintiff can counter-claim. called the ‘plea’. complete a document. he or she can just ignore the summons. The sheriff will serve the summons on the defendant and hand over the original and copy of the Return of Service at court. In the plea. • • • • • • • • • . and hand the original to the plaintiff and another copy to the sheriff. The plea will be served on the plaintiff.26 A Simple Guide to South African Family Law of the court. if the presiding family magistrate is satisfied that this is in order. This notice is then served on the plaintiff.
This usually happens .Divorce • The divorcing spouses have to wait at least a month before they get the divorce decree. and have it served at court. and that it will be unfair if the other spouse receives half or a portion of his or her estate. Forfeiture of benefits can be claimed when: • One of the spouses did not contribute financially to the marriage or made a smaller contribution towards the acquisition of the assets. Only when a lawyer has a right to appear in the High Court can that lawyer represent you. The attorney will appoint an advocate to represent you in court. it is advisable to consult an attorney. • The attorney will draft the summons. Entitlements after divorce Spousal maintenance See the section on maintenance (Chapter 6) for further discussion. Forfeiture of patrimonial benefits This is a claim made by a spouse who feels that he or she has made a bigger financial contribution in the marriage than the other spouse. 27 High Court • If a spouse wants to file for a divorce in the High Court. especially if children are involved or the divorce involves a large estate.
. unless a forfeiture order has been made. • The circumstances must show that it will be unfair if the other spouse benefits from the assets he or she did not help in acquiring. • The spouses can enter into a settlement agreement and decide between themselves how they are going to share their estate. It is advisable to have an attorney present when drafting a settlement agreement.28 A Simple Guide to South African Family Law when that spouse is responsible for the breakdown of the marriage. Sharing of assets and debts • Spouses who are married in community of property share the matrimonial assets and liabilities equally. Be alert! DD courts are not willing to order forfeiture of benefits the unless there are good reasons why the other spouse should not benefit. • The other spouse contributed more in the marriage and acquired most of the assets. • Any substantial misconduct on the part of either spouse. The court will take the following into account when deciding whether to grant forfeiture of benefits or not: • The duration of the marriage. • Circumstances that led to the breakdown of the marriage.
Be alert! DD you and your husband are separated and there is no If possibility of the marriage continuing. This means that the wife will inherit all his assets. When the husband dies. it is advisable to file for a divorce. The couple need to decide on custody. access and maintenance of the children. a husband leaves and moves in with a girlfriend. . even those that the husband acquired while living with the girlfriend. the law will not recognize this separation. For example. the law will recognize only his wife as the legal spouse.Divorce 29 Difference between separation and divorce When married spouses separate but they do not get a divorce. Custody of and access to children The divorce will not be finalized until arrangements regarding minor children have been made. this will legally end the marriage. He stays with the girlfriend for ten years without divorcing his wife. See the section on children (Chapter 5) for further discussion. DD position will be different if the husband has made a the will and left his assets to the girlfriend.
30 A Simple Guide to South African Family Law Example of a settlement agreement SETTLEMENT AGREEMENT IN THE HIGH COURT OF SOUTH AFRICA (TRANSVAAL PROVINCIAL DIVISION) CASE NO: … In the case between: . . 2. NOW THEREFORE the Parties agree as follows: 1. . . . . as contemplated in section 18(2)(a) of the . . . . . and a boy/girl … (born on … ). . .1 The Parties agree that there is/are one/two minor children born from the marriage relationship namely. . . . . . CARE AND RESIDENCY OF THE MINOR CHILD(REN): 2. . . a boy/girl … (born on … ). . . . . . . . . Plaintiff (Born … ) Defendant (Born … ) DEED OF SETTLEMENT WHEREAS the Plaintiff intends instituting divorce proceedings against the Defendant. . .2 That the parental responsibilities and rights with regard to the care of the minor child(ren). . . . . . 2. . . alternatively is in the process of instituting divorce proceedings against the Defendant in the above-mentioned Honourable Court AND WHEREAS the Parties agree that the marriage relationship has irretrievably broken down. and . The Parties will request the Honourable Court to incorporate this agreement in the Decree of Divorce to operate as an order of the Court. . .
(c) The right to have the minor child(ren) visit the Plaintiff/Defendant every alternative school holiday. that will begin at …h… on the Friday and end at …h… on the Sunday. (b) The minor child’s/children’s visitations on public holidays will be rotated between the Parties. be awarded to the Plaintiff/Defendant subject to the Plaintiff’s/ Defendant’s right of contact as stipulated in Section 18(2)(b) of Act 38 of 2005. the Plaintiff/Defendant will have the right to have the minor child(ren) visit him or her for such a long weekend. RESPONSIBILITIES AND RIGHTS WITH REGARD TO CONTACT TO THE MINOR CHILD(REN): 3. as contemplated in Section 18(2)(b) of the Children’s Act 38 of 2005 be awarded to the Plaintiff/Defendant.1 The Parties agree that specific parental responsibilities and rights with regard to contact with the minor child(ren).Divorce Children’s Act 38 of 2005. in the following manner: (a) The right of the Plaintiff/Defendant to have the child visit him or her every alternative weekend. The Parties agree that should the day following the weekend be a public holiday and fall on the weekend when the child(ren) is/are with the Plaintiff/Defendant. 3. so that the minor child(ren) will spend one short and one long school holiday with each party and further that 31 .
be awarded to the Parties jointly.32 A Simple Guide to South African Family Law December school holidays will be rotated between the parties. the Plaintiff/ Defendant will be entitled to have the child(ren) visit him or her on Father’s Day/ Mother’s Day from 09h00 until 17h00. 3. 3.3 The Parties undertake to notify the other Party of any changes in their addresses or telephone numbers. as contemplated in Section 18(2)(c) and 18(3) of the Children’s Act 38 of 2005.4 The parental responsibilities and rights with regard to the guardianship of the minor children. (f) The right to have regular contact telephonically with the child(ren) at all reasonable times.2 Neither the Plaintiff nor the Defendant may take the child(ren) out of the country without the other Party’s prior knowledge and written consent. (e) Should Father’s Day/Mother’s Day not coincide with the normal contact weekend as indicated above in par 3. (d) The minor child’s/children’s birthdays will alternate between the parties alternatively the parties will make such practical arrangements to enable the minor child to spend at least 3 (three hours) of his/her/their birthdays with each party. .1(b). 3.
5 It is recorded that the Parties complied with the requirements of Section 6(5) of the Children’s Act 38 of 2005 given the age. The maintenance amount will increase annually by 10%/by an amount equal to the increase in the consumer price index rate (CPI). 33 . and for the cost of all the necessary summer and winter school uniforms for each child. The … will be liable for payment of all other reasonable school-related expenses and extramural activities.3 The … will be liable for payment of all school fees.Divorce 3. or 4. details of which … undertakes to provide … with/at the Maintenance Court. MAINTENANCE FOR THE MINOR CHILD(REN): 4. but both Parties retain the right to approach the Maintenance Court for a maintenance order should the need arise.1 There will be no maintenance order made at this stage. that will be payable on the … th day of every month and will be paid into an account to be opened by the … . 4. maturity and stage of development of the minor child(ren) by informing the minor child(ren) of the decisions taken which will significantly effect the child(ren). 4.2 The … will pay maintenance to the … in respect of child(ren) in the amount of … ( … ) per month per child.
or 5.4 The Parties will be equally liable for payment of all school fees. or 4. the … undertakes to be liable for the payment of all the hospital.4 In the event of the … no longer being able to keep the said minor child(ren) as registered dependant(s) on his or her medical aid scheme.1 The … undertakes to keep the minor child(ren) registered on his/her medical aid or any other recognized medical aid and will be responsible for the payment of all monthly premiums until the child(ren) become(s) self supporting. 5. surgical. 5. necessary school uniforms. dental. Both parties will be equally liable / the … will be liable for all other reasonable school expenses. MEDICAL EXPENSES FOR THE MINOR CHILD(REN): 5. 5.5 The … will be liable for payment of all school fees.2 The … undertakes to be liable for additional medical contributions and excesses. pharmaceutical and optical costs. .34 A Simple Guide to South African Family Law 4. reasonably incurred on behalf of the said minor child(ren). including school uniforms and extramural activities. all other reasonable school-related expenses and extramural activities.3 Both Parties will be equally liable for additional medical contributions and excesses.
1 The … undertakes to pay an amount of … ( … ) per month for a period of 12 (twelve) months from date of signing of this agreement to the … . or 6.1 Both Parties agree to make equal contributions towards the children’s tertiary education should the child(ren) wish to further (his/her/ their) studies on a tertiary level. 7.3 The … undertakes to be solely liable for payment of all tertiary expenses of the above-mentioned child(ren) should the child(ren) wish to further (his/her/their) studies on a tertiary level.Divorce 6.2 Both Parties irrevocably and unconditionally relinquish their right to claim maintenance from the other for herself/himself. as maintenance for herself/himself. TERTIARY EDUCATION EXPENSES FOR THE MINOR CHILD(REN): 6.2 The … and … undertake(s) to contribute towards an education policy for the child(ren) which will provide the necessary funds in the amount of at least … ( … ) of which … ( … ) will be surrendered at the time when the child(ren) complete(s) (his/her/their) secondary education. 35 . MAINTENANCE PAYABLE TO THE PLAINTIFF/ DEFENDANT: 7. or 7. or 6.
.......... … with registration number … will be the sole property of the Plaintiff/Defendant.... 8.............. .............................................. The Plaintiff/Defendant will be responsible for all costs with regard to the said motor vehicle. MOVABLE PROPERTY: 8..3 The Parties further agrees that the motor vehicle.. this applies only to a marriage in community of DD property.2 The Parties further agree that the motor vehicle … with registration number … will be the sole property of the Plaintiff/Defendant.... Defendant: .................... .... or ... 8........ IMMOVABLE PROPERTY: 9......1 The Parties agree that the movable property will be divided as follows between the Parties: Plaintiff: ............ The motor vehicle is currently registered in the name of the Plaintiff/Defendant and will remain so registered............ The Plaintiff/Defendant will be responsible for all costs incurred with regard to the said motor vehicle... 9.. The motor vehicle is currently registered in the name of the Plaintiff/Defendant and will remain so registered.1 The Parties record that there is no existing immovable property in this communal estate..36 A Simple Guide to South African Family Law 8.......
The … will pay this amount to the … within … months of concluding this agreement. both parties shall be liable for such loss in equal shares. or 9. The … will be entitled to stay in the 37 .3 The … agrees to compensate the … with an amount which equals half of the amount of the difference between the current market value of the property and the balance owed on the home loan. The … undertakes to attend to the sale of the immovable property within … ( … ) months from date of divorce. In the event that a profit is realized. The … will be solely liable for the full payment of the bond for the abovementioned property and herewith relinquishes any claim he/she may have against the … . The … will be responsible for costs incurred with regard to the transfer fees of the property or 9. the … will be liable to pay the monthly instalments on the bond account. it will be divided between the parties in equal shares. This property will be registered in the name of the … as soon as possible.2 The immovable property situated at … will be the sole property of the … .Divorce 9. The … will be responsible for costs incurred with regard to the transfer fees of this property.4 The immovable property situated at … will be sold at the current market value. The parties agree that whilst the divorce proceedings are pending. In the event that the property is sold at a loss.
PENSION: 10.38 A Simple Guide to South African Family Law property until such time as he/she is obliged to vacate this property in terms of the Agreement of Sale then applicable.1 Each party irrevocably and unconditionally relinquishes any claim they may have against the other party’s pension interest. 13. as amended. COSTS: Each party accepts responsibility for his/her own legal costs in respect of this matter. 10. 70 of 1979. . is payable to the … and that this share of the pension interest shall be paid by the … pension fund to the … when any pension benefit accrues to the … . that 50% of the mentioned pension interest calculated from date of marriage to date of divorce. ADDITIONAL TERMS AND CONDITIONS: The parties agree that each shall be entitled to all credit balances in all banking and investments accounts and the value of the shares held in that party’s name. or 10. 12.2 The … pension fund namely the … with pension fund number: … shall be ordered to make an endorsement in the records of this fund in terms of Section 7(8)(a)(ii) of the Divorce Act No. DEBT: Each party undertakes responsibility for the payment of debts incurred in his or her own name. 11.
. ... . Make sure you get support and you do not go through this process alone. . . . . . you can approach the legal aid board. . .. ... .. . You must bring a copy of a marriage certificate or registration certificate when filing for a divorce. . .. ... 1. . .. neither party shall have a further claim against the other. 2. . .Divorce 14. 2. . ... ... . . . . . or seek legal advice at a legal advice office. . .. .. . . Defendant 39 General notes about divorce DD You do not need an attorney if you are filing for 1. .. . . ... .. ... a divorce at the family court.. FINAL AGREEMENT: This agreement constitutes the full and final settlement of all disputes between the parties and save as herein contained. Divorce is a very stressful and painful experience. .. . Plaintiff AS WITNESSES: 1. . .. .. .. .. 2. . . . .. .. . the clerk at court might also assist you. . . ... . . . . .. . . . . Thus done and signed at … on this the … day of … 200x. ... . . If your spouse has an attorney but you cannot afford one. . . . . . 3... .
Difference between cohabitation and marriage The major difference between cohabitation and marriage is that marriage is legally protected and cohabitation is not. Many people cohabit. Accordingly. sometimes called common law marriage or a ‘vat-en-sit’ relationship is a relationship where two unmarried adults live together and conduct their relationship like a married couple. The truth is. your relationship will automatically be regarded as that of husband and wife and on its dissolution. If you live with your partner but are not married. cohabitation is currently not yet legally recognized. and does not have legal protection. there is no such thing. There is also a wrong assumption that if you stay with your partner for a certain period or if you have children with your partner and stay together. 40 .40 A Simple Guide to South African Family Law ChaPter 4 Cohabitation (‘Vat-en-Sit’) Introduction Cohabitation. you will be entitled to certain benefits. but unfortunately. the law will regard you as boyfriend and girlfriend. you will not be entitled to the same benefits to which married spouses are entitled.
This does not apply to cohabitation relationships. . when a spouse dies without leaving a will. the other spouse can claim maintenance from his or her deceased estate. Maintenance after death If one spouse dies. The couple do not have any legal right to claim support from each other.Cohabitation (‘Vat-en-Sit’) 41 Examples of the difference between cohabitation and marriage Duty of support As soon as you get married. In a cohabitation relationship. the surviving spouse will be a beneficiary in the estate of the deceased. In a cohabitation relationship. you are entitled to be supported by your spouse and are also obliged to support him or her. If cohabitants want to get support from each other. This reciprocal duty of support exists regardless of whether you are married in community of property or not. a partner will inherit only if he or she has been named as a beneficiary in the deceased’s will. depending on your respective means and needs. Inheritance In a marriage. a partner has no right to make a maintenance claim when the other partner has died. If the deceased did not make a will. they have to conclude a cohabitation agreement whereby they both agree that they will support each other or that one of them will support the other. the estate will go to the dead partner’s blood relatives.
This can be difficult. You clean the house. especially if the relationship has been a long one. . Be alert DD Say. for example. and cook for your partner. unless the marriage is out of community of property without application of the accrual system. Upon the termination of the relationship. In a cohabitation relationship. Rights of cohabitants • Cohabitants can include each other in their medical aids provided that the rules of the medical aid allow this. If you and your partner disagree about which assets you are entitled to. you will not be paid or get a reward for doing these chores. you are a woman and you take on the role of wife. you may have to prove which assets are yours.42 A Simple Guide to South African Family Law Termination of the relationship When you are married you are entitled either to a half share of the joint estate of you and your spouse or a share in the accrual. • They can include each other as beneficiaries under insurance policies or as dependants under pension funds. you leave the relationship with only the assets you have bought into the relationship and those assets acquired by you during the relationship. • They are exempt from paying donations tax if they make a donation to each other. wash clothes.
In the contract. Very often. or one of you buys the house and the other is responsible for buying furniture. as your partner is not legally obliged to share his or her house with you. paying rates and supplying other household necessities. his or her family come and claim the assets. if you intend to buy a house together with your partner. including the assets of the surviving partner. For instance. there have been many situations where. you must agree on what should happen with regard to the house. so that you can prove they are yours if it becomes necessary to do so. furniture and other assets acquired during the relationship. 43 Cohabitation agreement Cohabitants need to have an agreement drawn up whereby they create rights and responsibilities for themselves. when a partner dies. the couple must agree on how they will conduct their living arrangements.Cohabitation (‘Vat-en-Sit’) If you are living with your partner in his or her house. It is important to keep receipts or other documentation in respect of assets which are yours. and state the rights and responsibilities of each of them in the relationship. when the relationship comes to an end you will have to make other living arrangements. should you decide to terminate the relationship. . they take everything. They should also state what should happen when the relationship comes to an end.
.44 A Simple Guide to South African Family Law Example of a cohabitation agreement COHABITATION AGREEMENT Made and entered into between — LERATO JOHN and PAUL JAY The terms of the agreement 1. 3. Lerato and Paul will share a common home. Paul will give Lerato R3 000 per month. In case of disputes. it is better that both cohabitants sign the lease. chosen by both parties. who will assist in mediating the dispute. Paul will be responsible for payment of the bond or rental and Lerato will pay for the rates. DD is important to note that it is advisable to have the It house registered in both your names instead of the name of one person. This money will be used for household expenses. 4. buy furniture and be responsible for household necessities. Paul and Lerato agree to see a counsellor or a third person. 2. otherwise the non-tenant party can be evicted by the tenant partner or by the landlord upon termination of the relationship through separation or death of the tenant partner. If DD the common home is a rented house or flat. Paul and Lerato agree to maintain each other financially in the same way as they would be obliged to do if they were married to each other. 5.
. .... Lerato John .. The termination of the relationship automatically terminates all rights and duties in terms of this agreement..... cancellation or addition will be valid unless it is in writing and signed by Lerato and Paul. when one of the partners does not want to continue with the relationship... This document represents the agreement between Lerato and Paul.. 7...Cohabitation (‘Vat-en-Sit’) 6.... subject to entitlements that are due to the parties upon the termination in terms of this agreement... 8... Signed at Johannesburg this 22nd day of January 2008.... Paul and Lerato agree to share equally the house and other assets acquired by either of them during the course of their cohabitation relationship.... . No court order or divorce procedure must be followed...... No variation. Paul Jay 45 Dissolution of a cohabitation relationship A cohabitation relationship can be terminated at any time... Upon the termination of the relationship.... through separation or death of either Paul or Lerato.
3. . 2. enter into it at their own risk. this might come in handy when the relationship ends or your partner dies.46 A Simple Guide to South African Family Law General notes about cohabitation DD Cohabitation is not legally recognized and partners 1. always keep proof of things you buy or money you use for improving the house or any transaction that you enter into with your partner. It is better to enter into a cohabitation agreement so that both parties are protected.
Children ChaPter 5 47 Children The Children’s Act 38 of 2005 now regulates the relationship between children and parents. custody and access. – Consent to the child’s adoption. 47 . care and contact. Guardianship This is the duty and authority of a parent or other legal guardian to make major decisions affecting a minor child. but to parental responsibilities and rights. including: – Consent to the child’s marriage. the terminology of guardianship. contractual and other legal matters. The terminology has also changed and the law no longer refers to parental power. access and custody is used to make it easier for you to understand. A parent or legal guardian who has guardianship of a minor child must: (a) Administer and safeguard the child’s property and property interests. (b) Assist or represent the child in administrative. Parental responsibilities and rights In this section. (c) Give or refuse any consent required by law in respect of the child.
custody will be given to the father. The court will grant this application only if this is in the best interests of the child. .48 A Simple Guide to South African Family Law – Consent to the child’s departure or removal from the Republic of South Africa. The court often gives custody of young children to the mother. If more than one parent or other person has guardianship of the child. the non-custodian parent can apply to the High Court for custody of the child. – Consent to the child’s application for a passport. the consent of all the persons who have guardianship of the child is required. This decision must be made in the best interests of the child. – Consent to the selling or mortgaging of any immovable property of the child. Custody (care) This refers to a parent’s right to have the child reside with him or her and to control and supervise the daily life of the child. • Couples going through a divorce have to decide who will get custody of the child after divorce. In respect of the matters listed in (c) above. • When one parent has custody of a child and the other parent is not happy with the way the child is being raised. unless a court orders differently. It is important that parents consult each other when dealing with issues relating to their child. however. but if it is in the best interests of the child. each one of them can exercise his or her parental responsibilities without the consent of the other parent or legal guardian.
Advantage of joint custody • This allows both the parents to remain involved in decisions concerning the day-to-day life of the child. for example. which may affect the child. ordered by the court. Every parent who does not have custody of his or her child has a right to have access to the child.Children 49 Joint custody (joint care) This is when both parents share custody of the child. this week with the father. Maintenance See the section on maintenance (Chapter 6) for further discussion. This will cause instability in the child’s life. Access should be denied only if it is not in the best interests of the child. The details of how this access is structured must be agreed between the parents or. Access (contact) Access refers to the situation where a parent who does not have custody sees and spends time with his or her child. if they cannot agree. Disadvantages of joint custody • The parents may not agree on how to raise the child and this may cause conflict between the two of them. • The child may have to live with both parents. next week with the mother. .
In terms of the Act and the South African Constitution. Best interests of the child Below are some of the factors the law considers important in assessing the best interests of the child: • The nature of the personal relationship between the parent and the child. • The exercise of parental responsibilities and rights in respect of the child. in an environment like that of a caring family. • The child’s age. the best interests of the child are still the key consideration in all matters affecting the child. • The practical difficulty and expenses of a child having contact with the other parent. when this is not possible. or from siblings or any other person with whom the child has been living. including the likely effect on the child of any separation from either or both parents. • The attitude of the parents towards the child. • The likely effect on the child of any changes in the child’s circumstances. including the child’s needs to be brought up in a stable family environment or.50 A Simple Guide to South African Family Law Children’s Act 38 of 2005 The Children’s Act brought about new law and requirements regarding the relationship between parents and children. maturity and developmental stage and his or her physical and emotional security. • The needs of the child. .
Children 51 Parental responsibilities and rights A parent has full or specific parental responsibilities and rights in respect of a child. whether married or unmarried. or – Any time between the child’s conception and birth. Parental responsibilities and rights of mothers The biological mother. (b) If the father was married to the child’s mother at: – The time of the child’s conception. Unmarried fathers The unmarried biological father can have full parental responsibilities and rights under the following circumstances: . has full parental responsibilities and rights in respect of a child. Parental responsibilities and rights of fathers Married fathers The biological father of a child has full parental responsibilities and rights under the following circumstances: (a) If the father is married to the child’s mother. • To act as guardian of the child. • To contribute to the maintenance of the child. • To maintain contact with the child. or – The time of the birth of the child. These include: • To care for the child.
When unmarried biological parents do not agree on whether the father has satisfied the requirements listed in (c)(i). (ii) and (iii) above. (b) If the mother of the child enters into an agreement with the father that he has full or some parental responsibilities and rights in respect of the child. and (ii) tried in good faith to contribute to the upbringing of the child for a reasonable period. (c) When he has: (i) consented and identified himself as the father of the child. and (iii) contributed or tried in good faith to contribute to the maintenance of the child for a reasonable period. Parenting plan Parents who both have parental responsibilities and rights in respect of a child can enter into what is called a parenting plan. This is an agreement between parents . the matter must be referred for mediation to a family advocate. social service professional or any other suitably qualified person. or paid damages in terms of customary law. This agreement takes effect only if it is registered with the family advocate or made an order of court.52 A Simple Guide to South African Family Law (a) When at the time of the child’s birth he is living with the mother in a permanent cohabitation relationship. social worker.
Children that determines their individual roles in respect to responsibilities and rights over the child. In the parenting plan, parents can agree on the following: • Where and with whom the child is to live. • The maintenance of the child. • Contact between the child and each parent or any other person. • The schooling of the child. • The religious upbringing of the child.
Formalities of a parenting plan
• It must be in writing. • It must be signed by both parents. There are two situations in which a parenting plan arises: 1. Where the parents are not experiencing difficulties in exercising their parental responsibilities and rights: – Parents can seek the assistance of any suitable third party or draft the parenting plan on their own. The parenting plan must be in the best interests of the child and also not prejudice either of the parents. – If the parents wish, the plan may be registered with a Family Advocate or made an order of court. The application for registration must be in the prescribed format, contain certain prescribed particulars, and be accompanied by a copy of the plan.
54 A Simple Guide to South African Family Law 2. When the parents are having difficulties in exercising their parental responsibilities and rights: – Before asking a court to intervene, the parents must try to agree on a parenting plan. – Parents must get the assistance of a Family Advocate, social worker or psychologist when drafting the parenting plan. – If the parents wish, they may apply for the parenting plan to be registered with a Family Advocate or made an order of court. The application must be in the prescribed format, contain the prescribed particulars, and be accompanied by a copy of the plan and a statement by the professional who assisted the parents in preparing it.
Interference with parental rights
When a parent refuses or prevents the other parent from exercising his or her parental responsibilities and rights: • The parent who has been prevented from exercising his or her parental responsibilities and rights, must lodge a complaint at the Children’s Court. • The Act states that a parent who has custody of a child and refuses the other parent access to that child or refuses to let that parent exercise his or her parental responsibilities and rights, or a parent who breaches a parenting plan agreement, is guilty of an offence and is liable on conviction to a fine or imprisonment not exceeding one year.
Matters the Children’s Court may deal with
• • • • • • The protection and well being of a child. The care of a child (custody). Contact with the child (access). Paternity of the child. Support of the child. Maltreatment, abuse, neglect, degradation, or exploitation of a child. • The temporary safe care of the child. • Adoption. • Any other matters relating to the care, protection or well being of children, as provided for in the Children’s Act.
DD Children’s Court: every magistrates’ court is also a
Children’s Court. therefore all magistrates’ courts have jurisdiction to hear the matters listed above.
. . We agree that the ON DUTY parent will make decisions about the day-to-day care and control of the children.. . . . . .. ... . . (Name of child) Regarding the following children: 1... .. . ... .56 A Simple Guide to South African Family Law Example of a parenting plan PARENTING PLAN AGREEMENT between: ... . ... . . . . . . the father is an ON DUTY parent and when the children are with the mother. . the mother is an ON DUTY parent. . .. . . . . . Mother 1. .. . .. . .. . When the children are with the father.. .. .. . . (Name of child) 2. . . .... . .. ... Father 3. ... .. .. . (Name of child) . . .. .. .. . . . . . . . . .. . or to have a significant adverse effect on the co-holder’s exercise of parental responsibilities and rights in respect of a child. Responsibilities and decision-making We each agree that we shall have the right and responsibility of raising our children and critical decisions shall be made by both of us together. . ... . . . . DD Critical decisions: this refers to any decision which is likely to change significantly. .. (Name of child) 4.
........ and each half will be regarded ........ Both of us agree that should the child stay at another residence..... they shall be staying at the following address: .... 4............... Visitation rights (if the parents are not living together and only one parent has custody/care of the children) The non-custodian parent has the right to remove the minor children from the care of the custodian parent every alternate weekend. Holiday schedule (if the parents are not living together) The children shall spend the entire period of every alternate school holiday and every alternate public holiday during school terms with each parent. which will begin at 17h00 on the Friday and end at 17h00 on the Sunday... 3.... The June/July holiday and the December/January holiday will be divided in half.................Children We agree that neither of us shall schedule activities for the children during the time the other parent is an ON DUTY parent without prior consent of the ON DUTY parent... 57 2........ Residence (if the parents are not living together) When the children are with the mother.............. we shall inform the other parent about this in advance.. When the children are with the father they shall be staying at the following address: .....
58 A Simple Guide to South African Family Law as a school holiday period. should this be in the best interests of the children. 7. We agree to treat each other with respect and dignity in the presence of our children. The children will spend every alternate Christmas Day with each parent. We agree to keep our conversation short and calm if we need to communicate with each other while the children are present. we shall call them ourselves. Flexibility Should something unexpected or unavoidable arise in respect of the children. Communication We agree that we will not communicate with each other in a hostile or rude manner in front of the children. . 5. If either of us wants to convey a message to the other. We agree that we shall not ask the children to give messages to the other parent. Transportation (if the parents are not living together) Both parents shall contribute towards the costs of transportation of the children to see the other parent. We shall not ask the children about the other parent and his or her relationships. the parent concerned shall inform the other parent as soon as is reasonably possible. We agree to change the arrangements set out above. 6.
in accordance with our respective financial means. in accordance with our respective financial means. and we agree to encourage our children to maintain contact with them from time to time. each parent has a right to maintain reasonably frequent contact with the children by telephone. Extended family We both agree that our children will maintain ties with grandparents. relatives and other people important to them. progress and educational requirements.Children During separation from the children. We both agree to support our children financially in taking extramural activities. 59 8. . We will together make major decisions regarding schooling and activities that the children will undertake. Education We agree that we will both be responsible for the payment of school fees. We both agree that we will encourage our children to keep in regular touch with the other parent. the ON DUTY parent must allow the children to talk to the other parent using a landline or on his or her cellphone. If the children do not have cellphones. as appropriate. 9. Each of us has a right to contact the children’s school to find out about their needs.
Health care We each have a right to access/have knowledge of our children’s medical information and records. The children shall be on the …’s medical aid. . Death (if only one parent has custody/care of the children) We agree that the custodian parent shall. provided that this continues to be in the best interests of the children. 12. Should the family of the deceased refuse to allow the surviving parent to exercise custody of the children. we agree that the other parent has rights and responsibilities over the children in preference to all other persons. the ON DUTY parent shall consent to the medical treatment necessary for the children and shall thereafter notify the other parent as soon as reasonably possible. We agree to consult each other regarding major health care decisions in respect of the children. As parents. appoint the non-custodian parent to be the child’s custodian parent after the custodian parent’s death. in his or her will. the other parent shall be offered the opportunity to care for the child before a third party is sought. including members of our respective families. the surviving parent will refer the matter to court and the legal fees should lie with the deceased’s family. In a medical emergency. Child care If it happens that the ON DUTY parent needs someone to care for the child on a temporary basis.60 A Simple Guide to South African Family Law 10. 11.
........ 14. Until the agreement is set aside....... Witness 1 ......... Any changes shall be made in writing.....Children 61 13..... Witness 2 ... Disputes Should one of the parents violate the terms of this agreement or not follow a part of this agreement. Father ............................. Signature ....... In the event of a disagreement..... both parents are bound by the terms of this agreement. we agree to take the matter through mediation before resorting to court........ this also applies if the agreement has been made an order of court. and if the dispute is not resolved.. the parties must apply to the Family advocate to have the agreement amended or terminated......... Witness 2 .... Duration This agreement shall be valid until cancelled or amended in writing by the parents or an order of court....... Mother .... Witness 1 ........... DD the parties have a right to have this agreement reg- istered with a Family advocate....
• Whether separation from the other parent will severely prejudice the child. unless a settlement agreement or a court order says otherwise. . the relocation will be allowed. If the reasons for the relocation are reasonable and will serve the best interests of the child. Relocating with the child within South Africa • The custodian parent has a right to relocate with the minor child within South Africa. which will be investigated in order to make sure that the custodian parent is not relocating to punish the non-custodian parent. Factors which the court looks at are the following: • The reasons for the relocation. Rights of a parent whose child has relocated • The parent will be given reasonable access. • The wishes of the child. • The advantages and disadvantages of the relocation to the child. If one of the parents refuses to consent to the removal of the child from South Africa. an application must be made to the High Court for consent. if the child is old enough to talk on his or her behalf.62 A Simple Guide to South African Family Law Relocation with a minor child within or outside South Africa Taking the child out of South Africa permanently Both parents’ consent is required for the removal of the child from South Africa.
He or she acquires full parental responsibilities and rights towards the child. only the consent of the mother is required.Children 63 Adoption Adoption means that an adult person takes a child who is not biologically his or hers and makes that child his or her own child. divorced or unmarried person. consent of both parents is required. • In respect of a child born outside marriage. • A married person whose spouse is the parent of the child. including a widow. • The social worker will hold interviews with the person who wants to adopt. • The social worker will also assess the life situation. • The consent must be in writing and signed in the presence of a commissioner of child welfare. personal circumstances and financial means of the person who wants to adopt. A child may be adopted by: • Husband and wife jointly. • A social worker will be appointed. • A couple in a same sex relationship. . Requirements • If the child was born within a marriage. The consent of the father will be required only if he has acknowledged paternity in writing. • A single person. Procedure for adopting a child • An application to adopt must be made at the children’s court.
3. rights and obligations that exist between the child and the biological parents and their relatives.64 A Simple Guide to South African Family Law • The social worker will then write a report and hand it over to the Children’s Court. • Ensure that the required consent has been obtained. Both parents must take part in raising their child or children. • Consider the report of the social worker. General notes about children DD the best interests of the child are the most important 1. Consequences of adoption • Adoption terminates the relationship. Parents must always put aside their differences for the benefit of the children. • Assess whether the person who wants to adopt is a fit and proper person. Criteria for adoption The court will do the following: • Assess whether adoption is in the best interests of the child. 2. • Assess if the person who wants to adopt has adequate resources to educate and maintain the child. factor regarding the welfare of the children. . • The child will be regarded for all purposes as the child of the adoptive parents and he or she will have the surname of the adoptive parents.
• The person who is liable to pay maintenance must be in a financial position to afford the maintenance. Parents have a legal duty to ensure that children are provided with these. Child maintenance Every child has the right to food. shelter. The duty to maintain someone financially applies in the following circumstances: • There must be a relationship between the parties and the parties must be legally obliged to take care of each other. irrespective of whether the child is born within the marriage. Procedure for getting maintenance There are three ways in which a maintenance order can be obtained: 65 . or has been adopted by them. clothing. • The person requiring maintenance must need financial help. medical care and schooling. or outside the marriage.Maintenance ChaPter 6 65 Maintenance What is maintenance? Maintenance is the duty to support someone else financially.
The parents are given a date to appear in court and the court will make a decision regarding maintenance. payslip. the child’s birth certificate. 2. The maintenance officer will assist the applicant in lodging the maintenance claim and in completing the forms. bills and receipts. although he or she has been subpoenaed and has knowledge of the date and time of the maintenance hearing. copies of living expenses. Steps for claiming maintenance in court 1. A copy of the written consent is then handed to the maintenance officer in court and is made an order of court. The other parent is then summonsed to appear in court. The parent suing for maintenance (called the applicant) must go to the maintenance court. which is the local magistrate’s court. The court can make a maintenance order against the parent in his or her absence which the court considers to be an appropriate order. Maintenance order by consent The parents agree in writing to the content of the maintenance order to be granted. Maintenance order by default This happens when the parent responsible for maintenance does not appear in court for the maintenance hearing.66 A Simple Guide to South African Family Law Appearance in court A parent who wants maintenance for a child or children sues the other parent for maintenance in the maintenance court. The applicant must bring his or her identity document (ID). These should .
and a decision will then be made. school fees. extramural activities. If there is an agreement. Formal hearing If the parents are unable to reach an agreement. school. the maintenance officer will ask both parties to sign a form consenting that the maintenance agreed upon be paid. and so on. Summons will be served on the parent who is sued for maintenance to appear in court. the matter will be heard in court. and the home or work address of. The presiding officer will consider all relevant information. give each parent a chance to state his or her case. the court will work out how much the child needs for his or her maintenance. The parents. . taking into account food. and medical bills. groceries.Maintenance include rent. will sit together to discuss and decide how much maintenance should be paid. 67 Maintenance hearing Informal hearing The maintenance officer will send a letter to the sued parent to come to court. and that form will be made an order of court. clothing. the parent responsible for maintenance. Payment of maintenance In deciding how much maintenance money to order. The applicant must also bring contact details for. transport. together with the maintenance officer. 4. 3.
How much the father earns. If the parent does not appear in court. the court can order the following: An attachment of emoluments (garnishee order) The money will be deducted from the salary of the defaulting parent. When a parent who has been ordered to pay maintenance does not pay it. The one who cannot afford to pay maintenance does not have the financial means to do so. When a parent does not pay maintenance in terms of a maintenance order It is important to note that there is a difference between a parent who refuses to pay maintenance and one who cannot afford to pay maintenance. The one who refuses to pay maintenance money simply refuses even though that parent may have the financial means to pay.68 A Simple Guide to South African Family Law The court will look at: • • • • • The reasonable costs of raising the child. 2. Whether the sued parent can afford the amount being claimed. 3. Each parent’s financial obligations. • The applicant must apply to the maintenance court for the attachment of emoluments. How much the mother earns. The other parent (the applicant) has to lodge a complaint at the maintenance court. the following can be done: 1. . The maintenance officer will summon the defaulting parent to appear in court.
Warrant of arrest The defaulting parent can be arrested. a warrant for his or her arrest will be issued. against the immovable property. The proceeds of the sale are then used to pay for the maintenance. or a pension fund payout. Warrant of execution The property of the defaulting parent can be attached and sold. • The warrant will be issued by the clerk of the maintenance court and given to the sheriff to serve.Maintenance • When the emoluments attachment order has been granted. • You have to lay a complaint at the maintenance court. • A date for the hearing will be set and the defaulting parent will be summonsed to attend. but can make such an order in other cases on application by the other parent. the courts have the power to order that part of that money or all of it be retained for future maintenance of the children. the maintenance officer must give notice plus a copy of the maintenance order to the employer of the defaulting parent to make payments. If DD the defaulter is about to receive a lump sum of money. If the defaulting parent does not attend the hearing. an inheritance. if it is insufficient. 69 for example from a sale of property. . the courts are obliged to order this retention only if the parent has been convicted of defaulting. • The applicant has to apply at the maintenance court for the authorization of the issue of a warrant of execution against the movable property of the defaulting parent and.
his or her spouse). his or her spouse is responsible for maintenance. Maintenance of parents by their children There are certain circumstances in which a child can be held legally liable to support a parent. • Closer relatives of the parent cannot support him or her (for example. This also applies to a situation in which the mother whose financial support the child needs cannot afford maintenance. If the child marries. the grandparents can be sued for maintenance. If the child is above the age of 18 years and is in need of financial assistance. the father of your child is not working and cannot afford maintenance but he has parents who can afford to maintain the child. • He or she has no other source of income or means whereby they can generate sufficient money to support themselves. for example. Maintenance of a child by grandparents If parents of a child cannot afford to maintain the child. . A parent who requires maintenance has to prove that: • He or she is not working or earns too little to support himself or herself. a child is a person under the age of 18 years.70 A Simple Guide to South African Family Law Duration of child maintenance In terms of the Children’s Act. but her parents can. If. he or she has a right to claim financial support from his parents. Maintenance of a child stops once the child becomes self-supporting. the duty falls on the grandparents on the sides of both parents.
the child will be ordered to pay maintenance. if one parent does not have the financial means to make any contribution. there is a difference between maintenance and access to the child. and the one is not dependent on the other. shelter and medical care. the custodian parent can claim maintenance for the child from the estate of the deceased parent. If the parent is married to another spouse in community of property and one of them is not working. by marriage to another spouse or remarriage after divorce. 3. clothing. 71 General notes about maintenance of children DD a parent’s duty to maintain a child is not affected 1. that parent’s maintenance contribution will come from the joint estate of the marriage. he still has the legal right to see and 2. if the father is not paying maintenance. The parent’s maintenance will be restricted to basic needs such as food. For example. each parent must contribute towards the maintenance of the child according to his or her means.Maintenance The court will hold a hearing and decide whether the child can afford to maintain his or her parent. If it is proved that the child can afford to maintain the parent. the other parent who does have such means will be responsible for the entire maintenance of the child. If a non-custodian parent who is liable to maintain a child dies. therefore. . 4. 5. Both parents still have a legal duty to support their child.
72 A Simple Guide to South African Family Law visit the child. On the other hand, if the custodian parent refuses access to the child, this does not give the non-custodian parent the right to stop paying maintenance. the non-custodian parent must make a separate application to court for access to the child. 6. If a father is not convinced that he is the biological father of the child, he has a right to ask for a paternity test. 7. Maintenance applications are made where the child resides. For example, if the child lives in Cape town and the father in Johannesburg, the maintenance process will be held in Cape town and the father has to come to Cape town, at his own expense. 8. When the child’s financial needs increase, an application for an increase in maintenance can be made. Similarly, if the means of the parent paying maintenance decrease, or the means of the other parent increase, or the child’s needs become less, the parent paying maintenance can apply for a decrease.
Spousal maintenance (maintenance between spouses)
When a couple gets married, they have a duty of support towards each other. This duty includes providing accommodation, clothing, food, medical services and other necessities for each other. The duty to support each other is the responsibility of both partners. This means that if, for example, a husband does not have the financial means to support himself, the wife has a legal obligation to support him, and vice versa.
Maintenance during marriage
During the marriage, if one of the spouses is not working and the working spouse does not contribute financially, the other spouse can apply to the maintenance court for maintenance.
End of duty of support
The duty of support between married spouses comes to an end when the marriage ends, although a spouse can apply for maintenance against the former spouse during the divorce procedure or claim from the deceased spouse’s estate.
Maintenance after death
When a spouse dies, the surviving spouse can claim maintenance against the spouse’s deceased estate in terms of the Maintenance of Surviving Spouses Act 27 of 1990. The executor of the estate has a duty to pay the maintenance. The following factors are taken into account when maintenance is claimed: 1. The amount available in the deceased estate. 2. The surviving spouse’s existing financial needs and obligations. 3. The duration of the marriage. 4. The surviving spouse’s standard of living during the existence of the marriage. 5. The surviving spouse’s age at the time of the deceased’s death. 6. Any other relevant factors.
74 A Simple Guide to South African Family Law
Maintenance after divorce
If the marriage ends in divorce and a spouse needs or foresees that he or she will need financial assistance in the future, a maintenance claim can be made against the other spouse in terms of section 7 of the Divorce Act.
Procedure for obtaining spousal maintenance after divorce
Settlement agreement The divorcing couple can sign a settlement agreement in which they include the terms of maintenance. In the agreement, the divorcing couple can decide on the amount and the duration of the maintenance. This agreement should then be made an order of court by the court granting the divorce. Court application If there is no agreement, a divorcing spouse can apply to the court hearing the divorce for a maintenance order against the other spouse.
Be alert! DD you need or anticipate that you may need mainteIf
nance after divorce, the maintenance application must be made during the divorce proceedings. Once a divorce has been granted, a former spouse cannot bring an application for maintenance.
Procedure In deciding whether to order maintenance and the amount that should be paid, the court will look at the following factors:
Example of token maintenance: Let’s say that during divorce you have a part-time job or you are under a contract and are not sure if in the future you will be employed. 6. Any other factor which might be relevant. you can then apply for an increase of this amount at the maintenance court. you can apply for what is known as token maintenance. 3. Once the court is satisfied that there is a need for maintenance. The applicant spouse’s standard of living while they were married. 5.Maintenance 1. If in the future you need financial support. 4. The applicant spouse’s age. . Both spouses’ earning capabilities and their existing or prospective income and other assets. You can apply for maintenance and ask the court to give you R1 or R10 monthly (token) maintenance. it will make a ruling that maintenance be paid to the spouse who applied for it. The spouses’ financial needs and obligations (both the husband and wife’s financial needs and obligations). The duration of the marriage (how long the marriage lasted). 2. 75 Token maintenance If during the divorce proceedings you do not need maintenance but can foresee that you will need financial support in the future.
have been married for a long time and were dependent on your husband. and in most cases. You must convince the court that you need the maintenance in order to get it. – there are other factors which compel you to have financial assistance. – the marriage lasted for a short period. For example.76 A Simple Guide to South African Family Law General notes about spousal maintenance DD the court does not easily award spousal maintenance 1. the courts usually award little or no maintenance where any one or more of the following factors is present: – the former spouse is young. – the spouses have no children or no young children and the former spouse can earn his or her own living. – the former spouse is in good health and can still work. If you are older. – You have small children you are looking after and you are not in a position to go back to work. and can earn his or her own living. – the former spouse is well qualified and can get a job. – You need financial help in getting back on your feet. you may use any one or more of the following arguments: – You are too old to find employment. 2. there is a high . 3. it awards it only for a specified period of time.
4. quarterly payments). and/or – a lump sum payment. 77 .Maintenance possibility that the court will order the other spouse to maintain you. it can take the form of: – monthly payments. – other periodic payments (for example. When maintenance has been ordered.
78 . and members of the same household. Kicking. children. It includes: • • • • Slapping. Punching. These relationships include married couples. It occurs between people who are in a relationship with each other. There is also a perception that domestic violence happens only to certain kinds of people.78 A Simple Guide to South African Family Law ChaPter 7 Domestic Violence What is domestic violence? Domestic violence is the term used when a person in a household abuses another person with whom he or she is living. Pushing. The truth is that domestic violence can happen to anyone. There are also many wrong perceptions regarding domestic violence. These include the perception that domestic violence is a family problem and should be treated as a private matter. dating couples. Domestic violence occurs on a daily basis but people are still afraid to talk about it. ex-partners. Forms of domestic violence Physical violence This is when physical harm is inflicted on a person’s body.
• Being disrespectful to you and saying bad things about you. • Threats. • Forcing you to do sexual acts that you do not like. your friends. • Any other harm which is inflicted on your body. and isolating you from your family. • Stabbing or shooting. • Forcing you to have sex with someone else. verbal and psychological behaviour that includes: • Insults. • Having affairs with other people. your family. • Controlling. • Burning the spouse or partner with hot water or other things such as cigarettes. humiliates. or name-calling. ridicule.Domestic Violence • Biting. degrades or violates a person’s sexual integrity. controlling your movements. This may include: • Your partner or ex-partner forces you to have sex with him or her. . stopping you from having friends. • Forcing you to do any sexual act that you find degrading. • Using children to control you. • Any other act which causes you emotional or psychological pain. 79 Sexual abuse This is any conduct that abuses. and so on. for example by telling you what you can do and what you cannot do. Emotional and psychological abuse This is any emotional.
Other forms of abusive conduct These include: • • • • Harassment. The relationship starts to be tense. The couple is in love and everything is going well. Refusing to give you money. Refusing to pay for household needs. Any other controlling or abusive behaviour that harms or may cause harm to you. It includes: • • • • • Not letting you work. Causing damage to property. Stages of domestic violence in a relationship Stage 1: Honeymoon stage This is the period in the relationship where everything is good. Stage 2: Tension stage This is when one partner starts to complain and accuses the other about things they did not do. Stalking. • Misusing your money. Taking away the money you have earned.80 A Simple Guide to South African Family Law Economic abuse This occurs when your partner does not support you financially and/or denies you the opportunity to earn money. . Not letting you have a say in the finances of the house.
• Others are isolated from friends and family. The abuser will also start to buy gifts and give the other partner attention. sometimes within a short period of time. He or she will beg for forgiveness and promise not to do it again. the abuser becomes sorry. They fear that if they leave the abuser they will not have anywhere to live or anybody to support them and their children financially. • Abused people are made to feel guilty if they want to get out of the relationship. The abuse cycle After the incident. • A large number of women are dependent on their male partners for their economic survival and that of their children. . Sometimes abusers are really sorry and sometimes they are just pretending. in most cases. This cycle will occur until the abused person puts a stop to it. After a while. Why do abused people find it difficult to leave an abusive partner? • Many blame themselves and see the abuse as their own fault.Domestic Violence 81 Stage 3: Abuse stage This is when one partner abuses the other. in most cases by being physically abusive. the abuser will start with his or her abusive ways again and the parties will be back at stage two and then three. The abused person will forgive the abuser and the relationship will go back to the honeymoon stage. They often find themselves not having anyone to turn to or lack knowledge of where to seek help.
You must also take your Identity Document and details of the abuser. if he or she considers this appropriate. . an abused person must apply at the magistrate’s court nearest where he or she lives or works or where the abuser lives or works. Step 2 • The magistrate will listen to your story and read any affidavits that you have brought with you. Procedure to follow You go to court on two separate days. • Take with you any documents like medical reports. The magistrate will give you a temporary order. photographs of the injuries. The process is as follows: Step 1 • You go to the magistrate’s court and apply for a protection order. The magistrate will then give you a temporary protection order. supporting affidavits from family members. The abuser is also called to appear in court on this day.82 A Simple Guide to South African Family Law Protection order Getting a protection order To get a protection order. neighbours or children who know about the abuse. The first time is when you make an application for a protection order. such as his or her work address and home address. A return date will be set and you have to go back to the court for the second time.
The abuser should also be there. the magistrate will make the temporary order a final order. the magistrate will decide whether to make the temporary protection order a final order or set it aside. 83 Step 3 • The sheriff of the court or the police will serve the protection order on the abuser. • The clerk of the court serves the final protection order on the abuser. • If the magistrate makes a final order. The clerk will also send a copy of the order and the conditional warrant of arrest to a police . This means that the police will arrest the abuser if he or she violates the protection order. he or she will also issue a conditional warrant of arrest in respect of the abuser. • The protection order tells the abuser that he or she must be at court on a date written on the protection order. Step 4 • You must go to court on the date written on the protection order. – For the abuser to be evicted from the home you share. – For the police to come with you to collect your belongings at your home. • If the abuser does not come to court. • After hearing both sides.Domestic Violence • You can also ask the magistrate: – To have the abuser’s firearm taken away if he or she has threatened you with it. • Both of you will get an opportunity to tell the magistrate your side of the story.
You do this in the form of a statement given under oath.84 A Simple Guide to South African Family Law station that you choose. • The police can warn or arrest the abuser as a result of the violation. customary. • Family members and friends of the abused person. You will also get a copy of the order. • Tell the police how the abuser violated the protection order. religious law or civil union. Violation of the protection order If the abuser violates the protection order • Go to the police station where the protection order was sent or to any police station. • People who are dating. • You can also lay charges against the abuser – for example for assault. • People who are living together but are not married. . • The order lasts until it is cancelled. • People who are engaged. Who can apply for a protection order? • A spouse who is married according to civil. or for pointing a firearm at you. provided that they have the written consent of the abused person. You must bring along the warrant of arrest that is attached to the protection order.
5. How to get out of an abusive relationship 1. If you have no place to go to. after you have cancelled it. Get a protection order. 4. You can get their details at the police station. 3. he or she can be sent to jail until a court appearance or warned and told to appear in court on a certain date. they start again with their abusive ways. Cancelling the protection order If you want to cancel the protection order. Be alert! DD abusers have a tendency of being apologetic and promising to change. Contact advisory centres or support groups in your area.Domestic Violence 85 What happens to the abuser? If the abuser is arrested. . Get help. 2. An abused person needs to acknowledge that he or she is in an abusive relationship and that it is not his or her fault. you must give written notice to the abuser and apply to the court to withdraw the order. Talk to family members or friends or go to the police. they do this in order to make you cancel the protection order or any other legal action. you can apply to move into a shelter.
. the police have a right to arrest an abuser at the scene of an incident of domestic violence without a warrant of arrest. Do not let your economic dependency be the reason your partner treats you badly. General notes about domestic violence DD an abused person has a right to call the police when 1. 4. as soon as you realize that you are in an abusive relationship you must get out. abused people can ask police to help them find a place of safety and for help to move there. Advantages of a shelter • It is a safe place. 5. the abuse occurs. 2. • Shelters provide support and counselling. Getting help from the police and applying for a protection order are free of charge. if the police reasonably suspect that the abuser has committed an offence involving physical violence. 3.86 A Simple Guide to South African Family Law Shelter What is a shelter? A shelter is a safe house where victims of abuse who do not have anywhere else to go or who fear for their lives are temporarily placed. • The environment is friendly and everybody is supportive.
the surviving spouse must receive his or her half share of the joint estate.Inheritance and Wills ChaPter 8 87 Inheritance and Wills Introduction One of the most important things that a person needs to think about is death and how their assets will be distributed after their death. the surviving spouse might have a claim against the deceased’s estate for an accrual share. money. that person is referred to as having died intestate. and so on). These beneficiaries are: the deceased’s legal spouse. Only once the 87 . A deceased’s estate consists of liabilities (debts) and assets (properties. only certain people. children. Intestate succession (dying without a will) When a person dies without leaving a will. can inherit from the deceased’s estate. and adopted children. This means that the deceased’s assets and property will be distributed in terms of the Intestate Succession Act 81 of 1987. household furniture. If the deceased was married in community of property. When a person dies. car. if the person has not left a will. blood relatives. called beneficiaries. In terms of intestate succession law. If the deceased was married out of community of property but with the accrual system. their assets will be distributed either in terms of their will (testate succession) or according to the rules of intestate succession.
and the surviving spouse has received his or her share in terms of the marriage in community of property or his or her share in terms of the accrual system. To calculate a child’s share you divide the value of the estate by the number of children of the deceased. Procedure for inheriting intestate When the deceased has left a spouse and children The spouse and biological children will inherit. Firstly the child’s share has to be calculated. You take R600 000 and divide it by five. plus one (the surviving spouse). can the deceased’s estate be distributed. whichever is the higher amount. His estate is worth R600 000. The result will be R150 000. Example 1 John dies and he leaves his wife Mary and three children. All four will get R150 000 each. Because this amount is less than R125 000. Child’s share When a spouse dies and is survived by a surviving spouse and children. Example 2 John dies leaving behind four children and a wife. the law says that a spouse must receive r125 000 or a DD child’s share. The result will be R120 000. Take R600 000 and divide it into four. a child’s share must be calculated.88 A Simple Guide to South African Family Law debts have been paid off. after payment of debts. sub- . His estate is worth R600 000 after payments of debts.
R600 000 divided into two is R300 000. Mary will firstly receive R300 000 under matrimonial property law. If any of the deceased’s children have died and have left children of their own (for example. John dies and leaves a joint estate worth R600 000 after payments of debts. the surviving spouse will inherit the . Mary has to receive her half share before distribution can occur.Inheritance and Wills tract R125 000 from the R600 000. Example 3 John and Mary were married in community of property. When only a spouse survives the deceased When married spouses do not have children and one of the spouses dies. A child’s share has to be calculated first. and also receives the R300 000 by virtue of the marriage in community of property. They will then divide the share that would otherwise have gone to their deceased parent equally between them. R300 000 divided into three (Mary and two children) is R100 000. He also left behind a wife and two children. grandchildren of John). 89 DD the examples above. Because the amount is lower than R125 000. Mary will receive R125 000 and the children will share the rest of the money. Mary inherits R125 000. the children will take the place of their deceased parent and inherit his or her share. Mary and the children will then share the remaining R300 000. the marriage was out of comIn munity of property. The children will share the remaining amount equally. In the end.
General notes about intestate succession DD an illegitimate child has a legal right to inherit from 1. 2. uncles. children. the deceased’s estate will be inherited by his siblings equally. When the deceased does not have a spouse. parents or siblings The closest blood relative of the deceased will inherit.90 A Simple Guide to South African Family Law entire estate. brothers and sisters will inherit nothing. the dead parent’s children or grandchildren will inherit in the place of their parents. When the deceased dies without a spouse or children If the deceased’s parents are still alive. It does not mean close in terms of who was living close to the deceased or who was in a close personal relationship with the deceased. each one will inherit half of the estate. Where there are no parents. The deceased’s parents. an adopted child can inherit from his adoptive parents and their blood relatives. If one of them has passed away leaving children. his or her father. aunts. If only one parent is alive. Close in terms of blood relations means. the children will inherit the share of the deceased’s sibling. for example. and so on. When only the children survive the deceased The children will inherit the entire estate and share it equally. Only if the parent does not have children or grandchildren will the other parent inherit the entire estate. cousins. the child cannot inherit from the natural parents and their blood .
Drafting a will Requirements for drafting a will • The testator must be over the age of 16. • The testator must draft the will personally. voluntarily stipulates how his or her estate will be distributed after his or her death. for example. What is a will? A will is a written document in which a person. If the testator cannot read or write. 2. If the will is more than one page long. or by a third person on behalf of a testator who cannot read or write. must be mentally capable. 91 Testate succession (dying with a will) When a person dies and has left a will. in other words. The will must be in writing.Inheritance and Wills relatives and they in turn cannot inherit from the child. called the testator. • He or she must be a person of sound mind. that person has died testate. every page must be signed by the testator. there are circumstances whereby a third person can draft a will on behalf of the testator. if it is drafted by a lawyer. However. the only time they can inherit is when they are named as beneficiaries in the child’s will. The testator must sign it at the end in the presence of at least two witnesses. Procedure for drafting a valid will 1. he can sign by .
or if someone else signs the will on the testator’s behalf. In either of these cases. Two or more witnesses must sign the will in each other’s presence and in the presence of the testator. If the testator signs by a way of a mark (X). .92 A Simple Guide to South African Family Law making a mark (X). two witnesses and a commissioner of oaths. 5. 3. by putting the prescribed certificate on the will and signing every page of the will other than the page on which the certificate appears. The witnesses must not be named as beneficiaries in the will. a commissioner of oaths must attest the document. the will must be signed in the presence of the testator. or someone else can sign on his or her behalf. 4.
. I leave my car to my son … and my house and its contents to my daughter … . Mpho Lerato (Testator) ........... and I confer on her all powers allowed by law. or form part of the accrual system.. as executor of my estate..... I hereby revoke all previous wills that I have made. in any existing or future marriage of such beneficiary. 2.. No benefit which is due to my beneficiaries in terms of this will shall form part of the joint estate.. hereby declare that my estate must be distributed as set out below... specifically the power of assumption...... The nominated executor is also exempted from the provision of security to the Master of the High Court. Pretoria. Witness 1 ..Inheritance and Wills 93 Example of a will Single testator WILL OF MPHO LERATO I.. .. Rose Molefe.. Signed at Pretoria in the presence of the undersigned and two witnesses who were all present and signed in the presence of myself and each other on this 13th day of June 1987.. a widow of 34 Sam Street...... 3.... Witness 2 . I nominate my grandchild....... Mpho Lerato (ID 8407090020088).. 4.... 1.........
We nominate John Paul Moloto Jr as the executor of our joint estate.94 A Simple Guide to South African Family Law Joint will WILL OF REFILOE AND KGOMOTSO MOLOTO We. whether jointly or separately. 5. We provide that no benefit in terms of this will shall form part of any joint estate or of any accrual system in any existing or future marriage of any beneficiary. John Paul Moloto Jr. subject to the survivor being entitled to live in our residence at … and use all the deceased’s other property for the rest of his or her lifetime. the undersigned Refiloe Moloto (ID 4456709823454) and Kgomotso Moloto (ID 4098549009123) Married in community of property and presently residing in Durban. 1. declare that our property must be distributed as follows. John Paul Moloto Jr shall take possession of the property in the estate only after the surviving spouse has passed on. 2. We revoke all previous wills made by us. we leave our entire estate to our son. Should one of us die before the other. Should we die simultaneously. . 4. will inherit our entire estate. 6. John Paul Moloto Jr. 3. our son.
........... Refiloe Moloto ... Witness 2 95 General notes about inheritance and wills DD Comply with all the legal requirements to make 1... When you are married in community of property.. it is advisable that you and your spouse make a joint will............ Witness 1 ... half of the assets that form part of the joint estate belong to your spouse and you cannot give them away............. Witness 2 . If a deceased spouse leaves assets that form part of the joint estate to someone else.......... 4.... the will valid... 2.......... When you are married in community of property....... 3............ always review your will regularly. .................Inheritance and Wills Signed at Bloemfontein on 13 January 1999 in the presence of the undersigned and two witnesses who were all present and signed in the presence of ourselves and each other.. Kgomotso Moloto ....... ... Witness 1 ...... the surviving spouse has a right to claim a half share of those assets.
7. If. When making a will. If the will is not changed and the testator dies later than three months after divorcing a spouse. you should get the assistance of a person who has knowledge in drafting wills.96 A Simple Guide to South African Family Law 5. 8. it is important that after divorce. this will assist you in making sure that the legal requirements are complied with. 6. if you do not want your ex-spouse to inherit. When a married spouse has made a will and subsequently divorces. you must change your will and remove that spouse as a beneficiary. however. this prevents family disputes regarding the deceased’s assets. It is very important to make a will. that spouse has three months’ grace period to change the will. . the ex-spouse will inherit if he or she was named as a beneficiary in the will. the testator dies before the three-month period has passed. accordingly. the estate of the testator will be distributed as if the ex-spouse had already passed away.
doj.gov.attorneys.Inheritance and Wills 97 appendix Useful contact details Marriage/family problems • Family Life Centre: 011-788-4784/5 • Lifeline: 086-132-2322 Domestic violence • POWA: 011-642-4345 • NISAA: 011-854-5804/5 • ADAPT: 011-885-3332 Maintenance • Tswaranang Legal Advocacy Centre: 011-403-8230 • Department of Justice: 012-315-1111 www.co.za General legal matters • Legal Aid Board: 086-105-3425 • Law Society of South Africa: 012-366-8800 • Attorneys’ website: www.za 97 .
za www. Divorce Act 70 of 1979 98 .za Books 1. 5th edition.gov.powa.za www. (2003) Deceased Estates.org. 3. 2. (2004) South African Family Law. DSP & Heaton. Pretoria: ProPlus Publishers.doj. 5.za www.agenda. CR. Legislation 1. MC.za www. 4. Lynnwood.concourt. Durban: LexisNexis Butterworths. Cronjé. Van Zyl. W.98 A Simple Guide to South African Family Law Bibliography Internet websites 1. P de W. 2nd edition. 3. 2. Civil Union Act 17 of 2006 3.za www.gov. Abrie. Graham. (1999) Law of Succession Student Handbook.gov.capegateway. Durban: LexisNexis Butterworths. Schoeman-Malan. 6. J.org. De Waal.paralegaladvice. Children’s Act 38 of 2005 2. MJ & Schoeman.co. L. 2nd edition. www. 4. (2005) Handbook of the South African Law of Maintenance. 2nd edition. MC & Van der Spuy. Wetton: Juta & Co Ltd.
Domestic Violence Act 116 of 1998 Intestate Succession Act 81 of 1987 Maintenance Act 99 of 1998 Maintenance of Surviving Spouses Act 27 of 1990 Recognition of Customary Marriages Act 120 of 1998 9. 7. Wills Act 7 of 1953 99 .Bibliography 4. 8. 5. 6.
53. 49. 49. 41–42 50. 62. 72 parenting plan 52–55.100 A Simple Guide to South African Family Law Index Figures in bold indicate examples of forms. custody of and access to children 50. 64 joint estate dissolution 18 Children’s Act 38 of 2005 47. 44–45 B and marriage. rights 47–52 55. 50. liabilities 15 50–52 protection between spouses custody (care) 48 17–18 guardianship 47–48 community of property (out of) joint custody (care) 49 18–21 maintenance 49 with accrual 19–20 parental responsibilities and without accrual 20–21 rights 47–52 consent relocation 62 verbal 16–17 Children’s Act 38 of 2005 47. 49. 48. 64 after divorce 29 formalities of parenting plan 53–55 100 . 23 agreement 43–45. 15–17 58. 63 children 47–64 community of property (in) 13–18 access (contact) 49 assets 13–15 adoption 63–64 joint estate administration best interests 3. 64 dissolution of relationship 45 rights of cohabitants 42–43 C cohabitation agreement 44–45 changing the matrimonial propCommissioner of Child Welfare erty system 21–23 3. 49. written 16 50–52 custody (care) 29. A Children’s Act 38 of 2005 (cont) parental responsibilities and access (contact) 25. 47. 58. 18. differences best interests of children 3. 53. 54. 58. 62. 53. 29. 62. 48. 56–61 administration of joint estate civil marriage 1–2 15–17 documents required 2 adoption 63–64 legal consequences 2 criteria for 64 Civil Union Act 12 procedure for 63–64 cohabitation (‘vat-en-sit’) 40–46 antenuptial contract 14. 48–49 joint 49 best interests of child 48. 62.
2. 6. 93 Home Affairs (department of) 1. 4. 7. 8 non-registration 5–6 polygamous 4–5 registration 5–7 requirements 4 validity 4 D death 18 dissolution of joint estate 18 divorce 18. 7. 8–9 G guardianship 47–48 H High Court 3. 8 Lobolo Agreement 6. 24–39 causes 24–25 custody of and access to children 29 entitlements after 27–29 forfeiture of patrimonial benefits 17–28 procedure 25–27 settlement agreement 30–39 sharing of assets and debts 28–29 domestic violence 78–86 abuse cycle 81 economic 80 escaping from abusive relationship 85 emotional and psychological 79 physical 78–79 protection order 82–85 sexual 79 shelter 86 stages 80–81 duty of support 41 E engagement 14 examples of forms see ‘forms’ F Family Court 6. 27. 17. 6. 62. 25–26. 48. 87–96 definition of a will 91 drafting a will 91–92 intestate succession 87–91 testate succession 91–96 101 . 39 financial consequences of marriage 13–23 administration of joint estate 15–17 changing the matrimonial property system 21–23 dissolution of joint estate 18 marriage in community of property 13–15 protection between spouses 17–18 marriage out of community of property 18–21 postnuptial agreement/contract 21 forfeiture of patrimonial benefits 17–28 forms (examples of) cohabitation agreement 44–45 founding affidavit 8–9 notice of motion 9–10 parenting plan 56–61 settlement agreement 30–39 will (single testator) 93 will (joint) 94–95 forms of domestic violence see ‘domestic violence’ founding affidavit 6. 11 I inheritance and wills 41–42.Index customary marriage 4 difficulties with registration 6–7 founding affidavit 8–9 lobolo 4. 6. 21. 7. 22.
73–74. changing 21–23 minor child definition 2 dissolution of marriage 3 requirements for marriage 3 N non-patrimonial damages 14 notice of motion 9–10 P parental responsibilities and rights 47–52 parenting plan 52–61. 72–77 steps for claiming 66–67 token 75 marriage 1–23 civil 1–2 customary 4 financial consequences 13–23 of minor child 2–3 same sex unions 11–12 Marriage Act 11 marriage in community of property 13–15 administration of joint estate 15–18 advantage of 18 assets 13–15 disadvantages 18 dissolution of joint estate 18 liabilities 15 marriage out of community of property 18–21 with accrual 19–20 without accrual 20–21 matrimonial property system. 70 divorce 74–75 duration of 70 during marriage 73 end of duty of support 73 formal hearing 67 hearing 67 informal hearing 67 non-payment 68–70 of child by grandparents 70 of parents by children 70–72 payment 67–70 procedure 65–67 spousal 1.102 A Simple Guide to South African Family Law L lobolo 4. 65–77 after death 41. 96 definition of 91 drafting of 91–92 joint 94–95 single testator 93 . 27. 7. 56–61 formalities 53–55 patrimonial benefits forfeiture of 27–28 polygamous marriages 4–5 postnuptial agreement 21–23 postnuptial contract 21–23 protection between spouses 17–18 Recognition of Customary Marriages Act 120 of 1998 (RCMA) 4 registration of customary marriages difficulties 6–7 relocation of minor children 62 S same sex unions 11–12 legal consequences 12 registration 12 requirements 11–12 settlement agreement 30–39 sharing of assets and debts 28–29 sheriff 7 spousal maintenance 1. 7. 49. 76–77 W will 14. 8 Lobolo Agreement 6. 6. 73–74 children 65. 8 M maintenance 41. 93–95. 27.