This action might not be possible to undo. Are you sure you want to continue?
South African Family Law
A Simple Guide to
A Simple Guide to South African Family Law Kathleen Nthabiseng Monareng LLB (Witwatersrand) 2008 .
Cape Town Printed and bound by Creda Communications (Pty) Ltd. Editing and indexing by Adrienne Pretorius Typesetting by G. including photocopying. electronic or mechanical. without permission in writing from the Publisher. who is grateful to Judge Belinda van Heerden for expert guidance that led to minor amendments being incorporated in this first commercially published edition. recording or by any information storage and retrieval system.J.za ISBN 978-1-920025-26-7 This work first appeared in January 2008 as a book self-published by the author. This book is copyright under the Berne Convention. 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. Cape Town .siberink.First Siber Ink edition 2008 Siber Ink CC PO Box 30702 Tokai 7966 Cape Town SOUTH AFRICA www. HANDS-ON Media.co. du Toit Cover design by Angela Tuck.
That is simply not good enough. the other human rights protected in the Bill of Rights — requires an acute awareness of the lived realities of people’s lives. what they mean in practice and how to protect them. mean only equality on paper or in theory. Without resorting to the ‘lawyers’ language’ that makes many books on family law difficult to understand for the non-lawyer. Promoting and achieving equality — and. It provides a ‘legal map’ for individuals entering into — and terminating — marriages. indeed. clear and accessible language. dealing with the children born of these relationships. civil unions and other domestic relationships. It is for this reason that A Simple Guide to South African Family Law is a publication as timely as it is admirable. v . and does not. human dignity and freedom are the bedrock on which the South African democracy stands firm.Contents v Foreword Equality. the author sets out the South African legal framework governing the different forms of family and personal relationships that exist in our multicultural society. 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. But equality cannot. 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. In easily readable. A Simple Guide covers those aspects of family law most likely to affect the lives of ordinary people.
and making arrangements to distribute property after death. having to face the sad reality of the domestic violence which continues to plague our society. B J van Heerden Judge of the Supreme Court of Appeal November 2008 . and the publisher in making it available to the public in such a user-friendly and accessible form. and guiding them through the procedures necessary to protect and enforce those rights. and in pastoral and community work. thus helping to realize the promise of the Bill of Rights in their daily lives.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. It will also be of great value to persons and organizations involved in training and education. I warmly congratulate Nthabiseng Monareng on her initiative and vision in conceptualizing and writing A Simple Guide. the book will educate and empower ordinary people.
If you are living with your partner unmarried. They enter into marriages. This perception is incorrect. South African law does not recognize cohabitation relationships. have children. but they seldom take time to consult an attorney vii . When you proposed marriage to your partner or your partner proposed to you. 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. People enter into relationships on a daily basis. the law will not regard you as a married couple. 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. move in with their partners. Many people are losing out on what is legally theirs because they do not know what their rights are. or how to go about accessing and enforcing them. Just think about this. you will be treated as boyfriend and girlfriend. sometimes referred to as common-law marriages.Contents vii Preface Ignorance of the law is one of the greatest challenges facing ordinary South Africans. 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.
This book will guide you in the process. They often concentrate only on their emotions and neglect thinking about the legal and financial implications of their relationships. inheritance. access. custody. maintenance. 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. Regardless of whether you are a man or a woman. steps and procedures that you need to undertake. KatHleen ntHaBiseng Monareng November 2008 . it is important that you take time to understand the legal consequences that come with relationships.viii A Simple Guide to South African Family Law or a legal consultant to find out how this will affect them legally. It is also a guide for those who are undergoing court battles. or any other dispute. It is a simple guide regarding aspects of family law that govern relationships and their subsequent termination. sharing of assets. domestic violence. 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. independent or dependent. I know this sounds unromantic. 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. whether it is a divorce. 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.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Financial Consequences of Marriage . – Dissolution of the joint estate . . . . . . vii • The aim of this book . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 • Same sex unions . . . . . . . . . . . 12 – Legal consequences of a civil union . . . . . . . . . . . . . . . 4 – Registration of customary marriages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xv 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 • Civil marriage . . • Marriage out of community of property . . . . . . . . . . 11 – Registration of same sex unions . . . . . ix 13 13 15 15 17 18 18 19 . . . . . . – Liabilities . . . – Marriage out of community of property with accrual . . . . . 12 • General notes about marriage . . . . . . . . . . . . . . – Assets . . . . . . . . . . . . . . . . . . . . . . . 4 – Polygamous marriages . . . . . . viii Introduction . . . . . . . . . . . . 12 2. . xv • What is family law? . . . . . . . . .Contents ix Contents Foreword . . . . . . Marriage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 – Marriage of a minor child . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Administration of the joint estate . . . . . . . . . . . . . . . – Protection between spouses . 13 • Marriage in community of property . . . . . . . . . v Preface . . . . . . . . . . . . . . . . . . . . . . 2 • Customary marriage. . . . .
. . . . . . . . 40 • Introduction . . . . . . . • Entitlements after divorce . . • Causes of divorce . . . . . . . . . . . . . . . . . . . . . . . . . . 45 • General notes about cohabitation . – High Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . – Sharing of assets and debts . . . . . . . . . • Divorce procedure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 . . . . • Difference between separation and divorce . . . . . . . . . . . • General notes about financial consequences of marriage . . • Custody of and access to children . . . . . . • What is divorce?. . . . . 24 4. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . – Family court . . . . . . . . . . . . . . . – Forfeiture of patrimonial benefits . . . . . . . . . . . . . . . . . 43 • Dissolution of a cohabitation relationship . . . . . . . . . . . . . . . . . . . . – Irretrievable breakdown of the marriage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . – Spousal maintenance . . 20 21 21 22 23 24 24 24 25 25 25 27 27 27 27 28 29 29 39 3. . . . . . Cohabitation (‘Vat‑en‑Sit’) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 • Cohabitation agreement . . . . . . . . . . . . . 40 – Examples of the difference between cohabitation and marriage. . . . . . . . . . – Postnuptial agreement . . . . . . . . . . . . – Procedure for making the application . • General notes about divorce . . . . . . . . . . . . . . . . . . . . . . . .x A Simple Guide to South African Family Law – Marriage out of community of property without accrual . . . . . . . . . . . . . . . . . . . . . . . • Changing the matrimonial property system . . . . . . . . . . Divorce . . . . . . . . . . . . . . . . 41 • Rights of cohabitants . . . . . . 40 • Difference between cohabitation and marriage. . . . . . – Mental illness or unconsciousness. . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . – Consequences of adoption . . . . . . . . . . . . – Parental responsibilities and rights of mothers . . . . . . . . • Interference with parental rights . . 47 • Parental responsibilities and rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . – Parental responsibilities and rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • General notes about children . . . . . . 47 47 48 49 49 49 50 50 51 51 51 52 53 54 55 62 62 62 62 63 63 64 64 64 . . . . • Adoption . . . . . . . . . . – Criteria for adoption . . . . – Best interests of the child . . . . . . . . . . • Parenting plan . . . . . . . . . . . . . . . . . . . . . . . . . – Guardianship . . . . – Maintenance . . . . . . . . – Formalities of a parenting plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .Contents xi 5. . . . . . . . . . . . . . . – Relocating with the child within South Africa . . – Matters the Children’s Court may deal with . . . . . . . . . . . . . . . . . . . . . . . . – Access (contact) . . . . . . . . . . . . . . . . . . . . . . . . – Rights of a parent whose child has relocated . . . . . – Parental responsibilities and rights of fathers. . . . . . . . . – Joint custody (joint care) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Children . . . . . . . . • Relocation with a minor child within or outside South Africa. . • Children’s Act 38 of 2005 . . . . . . . . . . – Taking the child out of South Africa permanently . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . – Procedure for adopting a child . . . . . – Custody (care) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . – Emotional and psychological abuse . – Sexual abuse . . . . . . . . . . . . . – Physical violence . . . . . . . . – Maintenance after death . . . . . . . . . . . . . . . . . . . . . • Maintenance of parents by their children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Maintenance of a child by grandparents . . . . . . . . . . . . . . . . . . . – Stage 2: Tension stage . . . . . . • 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. . . . . . . . . . . . . . . . . . . . . . . . . . . . . – Token maintenance . . – Payment of maintenance . . . – Maintenance hearing . . . . . . . . . . . . . . . . . . . . . . . . – End of duty of support . . . . . . . – Maintenance after divorce . . . . . . . . . . . . . 78 . . . . . . . . . . . . . . . 65 • What is maintenance? . . . . . . . . . . . . . . – Stage 3: Abuse stage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Stages of domestic violence in a relationship . . . . . . • What is domestic violence? . . – Other forms of abusive conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Maintenance . . . . . . . . – Stage 1: Honeymoon stage . . . . . . . . . . . . . . . . . . . . . . . . .xii A Simple Guide to South African Family Law 6. . • General notes about spousal maintenance . . • General notes about maintenance of children . . . . . . . . . . . . . . . . . – Duration of child maintenance . . . . . . . . . . . • Spousal maintenance (maintenance between spouses) . . . . . . . Domestic Violence . . . . . . . . . . . . . . . . . . . . . – Economic abuse . . . . . . . – Steps for claiming maintenance in court. – Maintenance during marriage . . . . . . . . . . . . . . . . . . . . . . . . . • Child maintenance . . . . . . – Procedure for getting maintenance . . . . . . . . . . . . . . .
. . – Drafting a will . . . . . . . . . . . . . . . . . . . . – What is a will? . . • Intestate succession (dying without a will) . . . . . . . . . • General notes about domestic violence. . . . . . . . . . . . • Shelter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 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. . .Contents • The abuse cycle . . . . . . . . . . . . . . . • Testate succession (dying with a will) . . . . . . . . . . • General notes about intestate succession . . . . . . . . – Domestic violence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • Useful contact details . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . – General legal matters . . . . . . . . . . . . . . . . . . . . . . . . . . . Inheritance and Wills . . . . . . . • Introduction . . . . • How to get out of an abusive relationship . . . . . . . 87 Appendix . . – Marriage/family problems . . . . . . . . . . . . . . . . . . . . . . . – Getting a protection order . . . . . . . . . . . . . . • General notes about inheritance and wills . . . . . . . . . – Who can apply for a protection order? . . . . . • Protection order . 97 . . . . . . . . . . . . . . . . – Cancelling the protection order . . . . – Advantages of a shelter . . . . . – Why do abused people find it difficult to leave an abusive partner?. . . . . . . . . . . . . . – Violation of the protection order . . – Maintenance . . . . . . . . . . . . . . . . . . – Procedure for inheriting intestate . . . . . . . . . . . . . . . . . . . . . . . . . – What is a shelter? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . – What happens to the abuser? . . . . . – Procedure to follow . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . 100 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .xiv A Simple Guide to South African Family Law Bibliography . . . . . . . . . . . . 98 • Legislation . . . . . . . . . . . . . . . . . . . 98 • Books . . . . . . . . . . . . . . . . . . . . . . . . . . 98 Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98 • Internet websites . . . . . . .
• To educate you about cohabitation: what the law says and how you can protect yourselves. and guardianship. each with its own requirements. • To make you understand what domestic violence is and how to get out of an abusive relationship. It consists of different aspects.Contents xv Introduction What is family law? Family Law is an area of law that regulates private relationships. • Finally. • To educate you about parental rights and responsibilities. • To educate you about child and spousal maintenance. to educate you about inheritance and wills. children as well as third parties. and also to ensure fairness between the parties in family disputes. dissolutions and death. as well as about adoption and the responsibilities and rights of unmarried parents. The aim of this book is: • To educate you about the different types of marriages recognized by law. which aim to protect couples who are in a relationship. contact (access). including care (custody). xv . • To educate you about divorce and separation.
For example. These benefits include the duty to support each other. 1 . to claim spousal maintenance and the right to have a share in each other’s assets. Home Affairs official or marriage officer such as a magistrate. 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. although you and your spouse do have the duty to support each other Civil marriage In order for a marriage to be legally recognized. for example a duly appointed minister of religion. you do not have the right to share in your spouse’s assets. • The marriage must be solemnized by a duly appointed marriage officer. with open doors and in the presence of at least two witnesses. if you are married out of community of property without the accrual system.Marriage ChaPter 1 1 Marriage Marriage is one of the most important steps that a couple can take. public place or private house. South African marriages are legally protected. and certain benefits are given to spouses upon the conclusion of a marriage. the following requirements have to be complied with: • The solemnization of the marriage must be held in a church.
that partner’s passport is required. the couple. The marriage officer will issue the married couple with a marriage certificate.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. As soon as the marriage has been solemnized. • The couple must agree to be married to each other and must declare their willingness in the presence of the marriage officer and witnesses. 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. • If divorced. must sign the marriage register. Marriage of a minor child DD minor is a child under the age of eighteen years. the final decree of divorce. together with two witnesses. Documents required • Identity documents or an affidavit in a prescribed form. a . The marriage officer will then submit the marriage register to the department of Home Affairs for recording. If one of the partners is not a South African. the death certificate of the deceased. • If widowed.
3 The parents or guardian of the child must. legal guardian or Commissioner of Child Welfare. The minor child can also apply to have the marriage set aside while he or she . • If a legal guardian is raising the child. the child has to ask for consent from the Commissioner of Child Welfare. the marriage will be legal unless it is dissolved (set aside) by the court. • If the minor child has no parents or legal guardian or they are unable to give consent (for example. insanity. owing to their absence. or any other reason).Marriage A minor can get married only when the following requirements have been complied with: • Written consent from both parents must be obtained. the child has to apply to the High Court for consent. within six weeks of learning about the marriage. 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. • If consent is not obtained from the parents. that parent’s written consent is required. apply to the High Court to have the marriage set aside. When a minor gets married without getting the required consent. his or her written consent is required. • The court will not give consent unless it is in the best interests of the minor child to get married. If only one parent has guardianship. This applies when both parents have guardianship of the child.
and it includes the payment of lobolo. Customary marriage Customary marriage is a marriage concluded in accordance with black people’s traditions and customs. their marriage will be regulated by custom and tradition. In terms of the RCMA. This means that lobolo alone is not sufficient. • The marriage must be negotiated and entered into in terms of custom. where couples entered into marriages before 15 November 2000. For the marriage to be valid there must be payment of lobolo. The . Requirements • Both of the marrying persons must be at least eighteen years old. Customary marriages were not regarded as legally valid marriages until 15 November 2000. • Both must agree to marry each other under customary marriage law. and customary rituals must also be held to complete the process. when the Recognition of Customary Marriages Act (RCMA).4 A Simple Guide to South African Family Law is still a minor or within three months of becoming an adult (that is. when no longer a minor). Marriages entered into on or after 15 November 2000 are governed by the RCMA. Requirements • A husband who is married and wants to take another wife has to make an application to the High Court. was adopted as law. which regulates customary marriages. Polygamous marriages The RCMA allows a man to have more than one wife.
Problems relating to non-registration • Your spouse might deny the existence of the marriage. • To ensure that there won’t be any prejudice suffered by the wives. thereby refusing to allow the husband to take another wife. 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. you need a registration certificate in . This means that if you are in a customary marriage and you did not register your marriage. The court can refuse to grant the order. 5 Registration of customary marriages In terms of the RCMA. if the wife or wives the husband is married to will be prejudiced by his taking another wife. • If you are not happy in the marriage and you want to get out of it. • The application has to be made before the prospective/proposed subsequent marriage takes place. a couple has three months to register their customary marriage. but non-registration does not make the marriage illegal. there is a high possibility that the second marriage will not be legally recognized. the marriage is still legally recognized.Marriage court has to approve a written contract that will regulate the matrimonial property system of the marriages. This will result in the second wife losing out on the benefits given to married spouses. Should the husband marry another wife without making the application to court.
DD Court means a high Court of South africa or a Family Court. together with witnesses from each side of the family. and affidavits from at least two family members who can confirm that the marriage did take place. Registration of customary marriage within three months of the marriage • The married couple. the founding affidavit. must go to Home Affairs to register the marriage. This helps to prevent fraud. Note: In some areas. • If one spouse refuses to have the marriage registered. it is sufDD ficient to take the Lobolo agreement to the court to start the registration process. 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. Your spouse might refuse to register the marriage at that stage. • The couple or spouse must have with them the Lobolo Agreement. accompanied by witnesses. the other spouse can go and have the marriage registered alone. and not just a magistrates’ court. The officers at Home Affairs might investigate in order to make sure that the parties are married to each other. thereby making it difficult for you to file for divorce and for you to get the benefits you are legally entitled to. .6 A Simple Guide to South African Family Law order to file for a divorce. such as the eastern Cape. also see the note below.
• The sheriff will serve the document to the other spouse. This one is from the Johannesburg Family Court and is used by Johannesburg courts only. 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. This is the day the magistrate/ judge will decide on whether to order the marriage to be registered or not. 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). . • Once you have a court date. It is important to note that there is no specific format for the founding affidavit. • Have these documents delivered to the sheriff of the court. • Once the documents have been served. • Take the return of service and go back to court to apply for a court date. you must go to court and appear on that date. and that the wording differs depending on cases and courts. 7 DD Note: the department of home affairs no longer sup- plies copies of the founding affidavit. An example of a founding affidavit is set out on the next page. • Make three copies and get a court stamp. and so far they have succeeded in having magistrates order late registration of customary marriages. They created their own forms.
. 2. . . . – The Respondent and I have been staying together as a married couple for … years. . …(naMe)… . . . 120 of 1998 that the marriage be registered. . . . . . and . . . . . . . . .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: . …(id no)… on …(date)… at … (place)… and the marriage still subsists. I. . . . – An amount of R … was paid as lobolo by the Respondent’s family and a certified copy of the Lobolo Agreement is hereto attached. . . . . . . . . . At the time of the marriage all requirements for validity of a customary marriage were complied with. . . – We both consented to be married to each other. . . Applicant Respondent FOUNDING AFFIDAVIT 1. APPLICANT therefore requests the court to grant an order in term of section 4(7)(a) of the Recognition of Customary Marriages Act No. …(id no)… was married customarily to …(naMe)… . . namely: – The Respondent and I were older than 18 years in that I was … years old and the Respondent was … years old. .
. 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.. . ... . . . . . .. 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: .. .. .. . .. . ... ... .. ..Marriage Dated at … on this … day of … 200x . and . .. .. .. Applicant Applicant has confirmed that she understands the contents of this affidavit. . . . . . .... .. has no objection to the prescribed oath and considers the oath as binding on her conscience... . . . . .... .. .... . . . 120 of 1998........
......... If no such notice of intention to oppose is given. and further..... 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. PLEASE FURTHER TAKE NOTICE THAT the Defendant hereby appoints the address hereunder as the place where he or she will receive all notices.......... TAKE FURTHER NOTICE THAT.. letters and/or other correspondence..... on a day fixed by the Registrar. Such alternative relief as the honourable court deems fit in the circumstances..10 A Simple Guide to South African Family Law 2. if you intend to oppose this application you are required: 1.. 2048 And to Respondent’s Attorney .. AND TAKE NOTICE THAT the accompanying affidavit of the Applicant will be used in support hereof. to file your answering affidavits. 2. 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.... 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.. Dated at … on this … day of … 200x .. Ferreirasdorp. Central Divorce Court Private Bag X6.. if any.......
a DD marriage officer may in writing inform the Minister of home affairs that he or she objects on the ground of conscience. with open doors and in the presence of at least two witnesses. • 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. . • A spouse who was previously married under the Marriage Act. • A person who is married under a civil union is not allowed to enter into a civil marriage (that is. Requirements • Parties must be eighteen years or older. religion and belief to solemnizing a civil union between persons of the same sex. marriage under the Marriage Act) or a customary marriage.Marriage 11 Same sex unions Same sex unions refer to the marriage or union of two people of the same sex. must produce a certified copy of a divorce decree or death certificate of the former spouse. • 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. or was a party to a customary marriage or a civil union. the marriage officer will then not be compelled to solemnize such civil union.
and the laws regarding the matrimonial property system also apply. two witnesses. 1. .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. 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. • The marriage officer. Legal consequences of a civil union The legal consequences of a civil union are the same as those found in civil and customary marriages. 2. and the marrying couple must sign the registration certificate. General notes about marriage DD registration of a marriage is very important. • The marriage officer will issue a registration certificate to the couple stating that they have. under the Civil Union Act. This means that the rights that married spouses automatically get by virtue of being married to each other also apply to civil unions. • Each partner must individually and in writing declare their willingness to enter into the civil union. Do not rush into a marriage.
Assets Not all assets form part of the joint estate. or out of community of property. 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. 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. the most important decision they have to make is to decide under what matrimonial property system they are going to marry. they need to decide if they are going to get married in community of property. with accrual or without accrual.Financial Consequences of Marriage ChaPter 2 13 Financial Consequences of Marriage When a couple decides to marry. Under community of property. The following will be excluded from the joint estate: 13 . That is.
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.14 A Simple Guide to South African Family Law 1. Assets excluded by will If a parent leaves an inheritance for his or her child in a will. If a parent does not state this in a will. 2. Engagement gifts These are gifts couples give to each other and also those they get as a result of their engagement. 3. for example damages for harm to their good name and reputation in an action for defamation. 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. the inheritance will form part of the joint estate. Assets that have been excluded from the joint estate in the antenuptial contract For example. 4. . If the husband rents out the house. He decides that he does not want it to form part of the joint estate. the husband has a house. or damages for pain and suffering in a personal injury claim. The couple have to sign an antenuptial contract excluding the house from the joint estate. 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.
the creditor need not first try to recover the money DD from the separate assets of the spouse who incurred the debt. this applies to the spouses themselves and does not affect third parties. and so on. Administration of the joint estate There are certain transactions that both spouses must agree to before they can be performed. unless the claim is for damages for a delict committed by that spouse. When one of the spouses has been sued and is liable for a debt. if there is insufficient money. or. This includes student loans. mainly creditors. the creditor can: • recover the debt from that spouse’s separate estate. If one of the spouses owes creditors. personal loans. car loans. if there is one. bonds. the creditor has the right to sue both spouses jointly and to recover the money from the joint estate. . the creditors can attach the assets of both spouses irrespective of whether or not the assets form part of the joint estate.Financial Consequences of Marriage 15 Be alert! DD although some assets do not form part of the joint estate. Liabilities Liabilities incurred before the marriage and during the marriage become part of the joint estate. In all other cases. • recover the money from the joint estate.
that transaction may be declared invalid. mortgage bonds. or money he or she won in a prize. if the third party knew or could reasonably have known that the spouse did not have consent from the other spouse. • Selling or giving away furniture or household goods. money obtained from his separate property. • Taking out a mortgage bond on a house or other building or land forming part of the joint estate. investments forming part of the joint estate. If a spouse enters into a transaction without obtaining the written consent required. • Signing as a surety for someone else. • Entering into a hire purchase or other credit agreement. Verbal consent is required in the following instances: • Obtaining your spouse’s remuneration. fixed deposits. DD Written consent must be witnessed by two witnesses. 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 .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. insurance policies. • Withdrawing money credited in the name of the other spouse in any bank account. inheritances. donations. for example rent. • Ceding or pledging shares.
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. If one of the spouses is reckless with the assets of the joint estate. 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.Financial Consequences of Marriage reasonably have known that the consent was not given. In this case the transaction will be valid. or is misusing money. That means that the other spouse who did not give consent will be bound by that transaction. . – No other person will be prejudiced if the estate is divided at that stage. 17 Protection between spouses 1. If a spouse wants to enter into a transaction and the other spouse withholds the consent. The court will give the consent if it is satisfied that the other party is being unreasonable. 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. and the other spouse fears that he or she will suffer serious prejudice. 3. the latter spouse can apply to court to have the joint estate divided immediately. 2.
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. 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. even if he or she did not contribute anything.18 A Simple Guide to South African Family Law Advantage of community of property • You and your spouse share assets and liabilities equally. In it they exclude community of property or certain benefits that they do not want to form part of the joint estate. • Divorce. Marriage out of community of property If a couple decides to get married out of community of property. • Your spouse may incur debts without your knowledge and these debts may form part of and be recoverable from the joint estate. This is a contract that a couple signs before they get married. they have to conclude an antenuptial contract.
by death or 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. When they got married. At the time of divorce. 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 . Mpho’s net estate is R80 000 and Thabo’s net estate is R250 000. Three years later they decide to get a divorce.10) and that of Thabo’s estate is R55 000 (R5 000 × 1. • On the dissolution of the estate. 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. Taking into account the decline in the value of money over the period of their marriage (say the value of money. has fallen by 10% over those three years) the recalculated net commencement value of Mpho’s estate is now R11 000 (R10 000 × 1. Mpho had assets worth R10 000 and no debts.10). Example of the accrual system Mpho and Thabo are married out of community of property with the accrual system. Thabo had R50 000 and no debts. measured using the Consumer Price Index. the value of each spouse’s assets obtained during the marriage will be calculated.
As a result. Mpho will claim half the difference from Thabo’s estate. Thabo’s accrual is higher than that of Mpho. Disadvantages of community of property with accrual • There is equal sharing of the growth of the spouses’ estates during the marriage.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. • 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. Advantages of community of property with accrual • Creditors of one spouse cannot attach the other spouse’s separate estate. R195 000 – R69 000 = R126 000 Divide into two (2) = R63 000. • 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. Mpho will receive R63 000. but no sharing of what the other spouse brought into the marriage. • Spouses are liable for their own debts. 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 .
upon the dissolution of the marriage. Disadvantage of community of property without accrual • If you are not working and were financially dependent on your spouse. Creditors of one spouse cannot attach the other spouse’s estate. you get your whole estate.Financial Consequences of Marriage not want to share anything. Postnuptial agreement Married spouses have to make a joint application to the High Court for an order known as a postnuptial contract. from community of property to out of community of property. you will not be entitled to any property from his or her share. 21 Advantages of community of property without accrual • You do not share your assets with your spouse. Changing the matrimonial property system It is possible for a couple to change their matrimonial property system. or even more. and on the dissolution of the estate. they must specify in the antenuptial contract that they want their estate to be out of community of property without the accrual system. or the other way around. You may get only spousal maintenance. Be alert! DD is important to note that it is an expensive procedure It to change your matrimonial system. . It can cost from r15 000 to r30 000. • Spouses are liable for their own debts.
Creditors must be informed about the application. • The spouses must show that no other person will be prejudiced by the change. The spouses have to give information about their finances. 2.22 A Simple Guide to South African Family Law Usually an attorney or advocate is needed to make the application. or from out of community of property to in community of property. 6. 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. 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. 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. 3. A notice of the application has to be given to the Registrar of Deeds. If the creditors object to the change and show that they will be prejudiced if the matrimonial property system . 5. The spouses must show the court that creditors will not be affected by the change. This has to be accompanied by the draft document of the postnuptial contract. The application to change the system has to be made to the High Court. Procedure for making the application 1. • The spouses must give notice of the proposed change to all their creditors. 4.
and this is expensive. 23 General notes about financial consequences of marriage DD antenuptial contracts have to be signed by the 1. Their matrimonial property system will then be the one set out in the postnuptial contract. 4. 3. Do not enter into a system that will prejudice you in the future. they must be registered at the Deeds Office within three months from the date of the marriage. think carefully about the matrimonial property system that you want to enter into. the antenuptial contract can be registered with the consent of the court. If the court grants permission to change the property system. the couple must register their postnuptial contract at the Deeds Office.Financial Consequences of Marriage is changed. parties before an attorney called a notary before the marriage takes place. a court application must first be made to register the antenuptial contract. You cannot conclude an antenuptial contract once the marriage has taken place. after this three-month period. If you are about to be married. the court will not allow the change. 2. or may allow the change with conditions. .
this means that the couple can no longer live together as husband and wife. Causes of divorce There are many reasons for people deciding to divorce. but only two are recognized in South African law. • 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. Examples of irretrievable breakdown • The spouses have not lived together as a married couple for a period of time. Irretrievable breakdown of the marriage When a marriage has broken down irretrievably. Their relationship has become so bad that they must separate. • A spouse is an alcoholic or a drug addict.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. • The marriage is abusive. 24 . • The parties no longer love each other.
division of the joint estate. Here a spouse has to state what he or she is claiming. • These forms consist of a summons. redistribution of assets.Divorce • Any other circumstances where a spouse makes it impossible to continue with the marriage. three copies have to be made and given to the registrar or clerk . • 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. The clerk will give the spouse forms to complete. with particulars of claims attached. • In the particulars of claims. Divorce procedure Family court • The spouse who files for a divorce is called the plaintiff and the other spouse is called a defendant. • Once the forms have been completed. 25 Mental illness or unconsciousness • When a spouse has been admitted to a mental institution. forfeiture of benefits. a decree of divorce. • If the spouse does not have a lawyer to assist him or her. • When a spouse is permanently unconscious. for example. access. • The last page consists of the prayer section. or maintenance. custody. a spouse has to write the reasons for filing for a divorce. that spouse may request the registrar or the clerk to assist them in preparing the documents required. and a statistics form.
• • • • • • • • • . Once the defendant has been served with 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. if the presiding family magistrate is satisfied that this is in order. On the hearing day. If the defendant decides to defend the divorce. complete a document. a date for the divorce hearing will be set.26 A Simple Guide to South African Family Law of the court. A defendant has one month to file a notice of intention to defend the divorce. The registrar or the clerk will stamp all copies and allocate a case number. the defendant states his or her objections to the summons and what he or she wants to claim from the other spouse. The plaintiff can counter-claim. called the ‘plea’. he or she can just ignore the summons. There is then a strong possibility that during the hearing the plaintiff will be given whatever he or she claimed. he or she must. and hand the original to the plaintiff and another copy to the sheriff. he or she has a choice of either defending the divorce or not. In the plea. the divorce will be finalized. If the defendant chooses not to defend the divorce. The registrar or the clerk will keep one copy. when both parties will appear in court. The plea will be served on the plaintiff. within 10 court days after filing and serving the notice of intention to defend. After all the documents have been filed in court. This notice is then served on the plaintiff.
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. Entitlements after divorce Spousal maintenance See the section on maintenance (Chapter 6) for further discussion. Only when a lawyer has a right to appear in the High Court can that lawyer represent you. 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. This usually happens . it is advisable to consult an attorney. and that it will be unfair if the other spouse receives half or a portion of his or her estate. especially if children are involved or the divorce involves a large estate.Divorce • The divorcing spouses have to wait at least a month before they get the divorce decree. • The attorney will draft the summons. The attorney will appoint an advocate to represent you in court. and have it served at court.
28 A Simple Guide to South African Family Law when that spouse is responsible for the breakdown of the marriage. • The other spouse contributed more in the marriage and acquired most of the assets. The court will take the following into account when deciding whether to grant forfeiture of benefits or not: • The duration of the marriage. Sharing of assets and debts • Spouses who are married in community of property share the matrimonial assets and liabilities equally. . • Any substantial misconduct on the part of either spouse. • 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. unless a forfeiture order has been made. • Circumstances that led to the breakdown of the marriage. 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. It is advisable to have an attorney present when drafting a settlement agreement.
Be alert! DD you and your husband are separated and there is no If possibility of the marriage continuing. this will legally end the marriage. access and maintenance of the children.Divorce 29 Difference between separation and divorce When married spouses separate but they do not get a divorce. . the law will recognize only his wife as the legal spouse. For example. Custody of and access to children The divorce will not be finalized until arrangements regarding minor children have been made. even those that the husband acquired while living with the girlfriend. He stays with the girlfriend for ten years without divorcing his wife. This means that the wife will inherit all his assets. DD position will be different if the husband has made a the will and left his assets to the girlfriend. it is advisable to file for a divorce. See the section on children (Chapter 5) for further discussion. The couple need to decide on custody. the law will not recognize this separation. When the husband dies. a husband leaves and moves in with a girlfriend.
. . . 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. . a boy/girl … (born on … ). . . . . . . . . . . . . CARE AND RESIDENCY OF THE MINOR CHILD(REN): 2. . .1 The Parties agree that there is/are one/two minor children born from the marriage relationship namely. . and a boy/girl … (born on … ). . . . . 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. 2. 2.30 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: . . . . . . . as contemplated in section 18(2)(a) of the . NOW THEREFORE the Parties agree as follows: 1. . . . . 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). . . .
in the following manner: (a) The right of the Plaintiff/Defendant to have the child visit him or her every alternative weekend. 3. 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. RESPONSIBILITIES AND RIGHTS WITH REGARD TO CONTACT TO THE MINOR CHILD(REN): 3. (c) The right to have the minor child(ren) visit the Plaintiff/Defendant every alternative school holiday. the Plaintiff/Defendant will have the right to have the minor child(ren) visit him or her for such a long 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. so that the minor child(ren) will spend one short and one long school holiday with each party and further that 31 .Divorce Children’s Act 38 of 2005. (b) The minor child’s/children’s visitations on public holidays will be rotated between the Parties. 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). that will begin at …h… on the Friday and end at …h… on the Sunday.
4 The parental responsibilities and rights with regard to the guardianship of the minor children.3 The Parties undertake to notify the other Party of any changes in their addresses or telephone numbers. (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. 3. 3. 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. (e) Should Father’s Day/Mother’s Day not coincide with the normal contact weekend as indicated above in par 3. 3. be awarded to the Parties jointly.1(b).32 A Simple Guide to South African Family Law December school holidays will be rotated between the parties. (f) The right to have regular contact telephonically with the child(ren) at all reasonable times. as contemplated in Section 18(2)(c) and 18(3) of the Children’s Act 38 of 2005.2 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. .
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). MAINTENANCE FOR THE MINOR CHILD(REN): 4. The … will be liable for payment of all other reasonable school-related expenses and extramural activities. but both Parties retain the right to approach the Maintenance Court for a maintenance order should the need arise. or 4. 33 . and for the cost of all the necessary summer and winter school uniforms for each child.1 There will be no maintenance order made at this stage. 4.3 The … will be liable for payment of all school fees.Divorce 3. details of which … undertakes to provide … with/at the Maintenance Court.2 The … will pay maintenance to the … in respect of child(ren) in the amount of … ( … ) per month per child. 4.5 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). that will be payable on the … th day of every month and will be paid into an account to be opened by the … .
5. or 4. all other reasonable school-related expenses and extramural activities. including school uniforms and extramural activities. surgical. reasonably incurred on behalf of the said minor child(ren).5 The … will be liable for payment of all school fees.34 A Simple Guide to South African Family Law 4. 5.2 The … undertakes to be liable for additional medical contributions and excesses.3 Both Parties will be equally liable for additional medical contributions and excesses. or 5.4 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. necessary school uniforms. pharmaceutical and optical costs.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. Both parties will be equally liable / the … will be liable for all other reasonable school expenses. the … undertakes to be liable for the payment of all the hospital. 5. MEDICAL EXPENSES FOR THE MINOR CHILD(REN): 5. dental.4 The Parties will be equally liable for payment of all school fees. .
7.1 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 … . MAINTENANCE PAYABLE TO THE PLAINTIFF/ DEFENDANT: 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. or 6. 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.Divorce 6. 35 .2 Both Parties irrevocably and unconditionally relinquish their right to claim maintenance from the other for herself/himself. or 7. 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. as maintenance for herself/himself.
.. 8..1 The Parties agree that the movable property will be divided as follows between the Parties: Plaintiff: ... The Plaintiff/Defendant will be responsible for all costs incurred with regard to the said motor vehicle......... IMMOVABLE PROPERTY: 9. Defendant: ........................ 9... MOVABLE PROPERTY: 8.. or .2 The Parties further agree that the motor vehicle … with registration number … will be the sole property of the Plaintiff/Defendant......... ................ The motor vehicle is currently registered in the name of the Plaintiff/Defendant and will remain so registered...3 The Parties further agrees that the motor vehicle..... The motor vehicle is currently registered in the name of the Plaintiff/Defendant and will remain so registered.... ...................... … with registration number … will be the sole property of the Plaintiff/Defendant..... The Plaintiff/Defendant will be responsible for all costs with regard to the said motor vehicle....................... this applies only to a marriage in community of DD property.......... 8..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 be responsible for costs incurred with regard to the transfer fees of the property or 9. The … will pay this amount to the … within … months of concluding this agreement.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. or 9.Divorce 9. In the event that a profit is realized.2 The immovable property situated at … will be the sole property of the … . both parties shall be liable for such loss in equal shares.4 The immovable property situated at … will be sold at the current market value. 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 … undertakes to attend to the sale of the immovable property within … ( … ) months from date of divorce. it will be divided between the parties in equal shares. the … will be liable to pay the monthly instalments on the bond account. In the event that the property is sold at a loss. This property will be registered in the name of the … as soon as possible. The parties agree that whilst the divorce proceedings are pending. The … will be responsible for costs incurred with regard to the transfer fees of this property. The … will be entitled to stay in the 37 .
1 Each party irrevocably and unconditionally relinquishes any claim they may have against the other party’s pension interest. that 50% of the mentioned pension interest calculated from date of marriage to date of divorce. or 10. as amended. 10.2 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. . 70 of 1979. 13. DEBT: Each party undertakes responsibility for the payment of debts incurred in his or her own name. 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. COSTS: Each party accepts responsibility for his/her own legal costs in respect of this matter. 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 … .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. PENSION: 10. 12. 11.
. .. Defendant 39 General notes about divorce DD You do not need an attorney if you are filing for 1.... Make sure you get support and you do not go through this process alone. . . . .. . the clerk at court might also assist you.. . . . . . . . . . .. . . . . . If your spouse has an attorney but you cannot afford one. Thus done and signed at … on this the … day of … 200x. .. . . . .. . . .. you can approach the legal aid board. FINAL AGREEMENT: This agreement constitutes the full and final settlement of all disputes between the parties and save as herein contained. ... . .... 1. . . . . . . ... a divorce at the family court. . .. .. . . . . .. . .. . 2.. .. Divorce is a very stressful and painful experience..Divorce 14. Plaintiff AS WITNESSES: 1.. . . .... .. .. . . neither party shall have a further claim against the other. . .. .. 2. 3.. 2. . . . . . You must bring a copy of a marriage certificate or registration certificate when filing for a divorce. . . or seek legal advice at a legal advice office.. .. .. . ..
40 A Simple Guide to South African Family Law ChaPter 4 Cohabitation (‘Vat-en-Sit’) Introduction Cohabitation. you will be entitled to certain benefits. there is no such thing. your relationship will automatically be regarded as that of husband and wife and on its dissolution. the law will regard you as boyfriend and girlfriend. Many people cohabit. 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. Difference between cohabitation and marriage The major difference between cohabitation and marriage is that marriage is legally protected and cohabitation is not. 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. but unfortunately. If you live with your partner but are not married. and does not have legal protection. 40 . you will not be entitled to the same benefits to which married spouses are entitled. The truth is. cohabitation is currently not yet legally recognized.
Cohabitation (‘Vat-en-Sit’) 41 Examples of the difference between cohabitation and marriage Duty of support As soon as you get married. a partner will inherit only if he or she has been named as a beneficiary in the deceased’s will. you are entitled to be supported by your spouse and are also obliged to support him or her. . the surviving spouse will be a beneficiary in the estate of the deceased. This reciprocal duty of support exists regardless of whether you are married in community of property or not. In a cohabitation relationship. The couple do not have any legal right to claim support from each other. Maintenance after death If one spouse dies. This does not apply to cohabitation relationships. If cohabitants want to get support from each other. depending on your respective means and needs. when a spouse dies without leaving a will. the other spouse can claim maintenance from his or her deceased estate. Inheritance In a marriage. the estate will go to the dead partner’s blood relatives. In a cohabitation relationship. 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. If the deceased did not make a will. a partner has no right to make a maintenance claim when the other partner has died.
you will not be paid or get a reward for doing these chores. . for example. unless the marriage is out of community of property without application of the accrual system. • They are exempt from paying donations tax if they make a donation to each other. Be alert DD Say. wash clothes. you may have to prove which assets are yours. You clean the house.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. In a cohabitation relationship. This can be difficult. and cook for your partner. you leave the relationship with only the assets you have bought into the relationship and those assets acquired by you during the relationship. • They can include each other as beneficiaries under insurance policies or as dependants under pension funds. 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. especially if the relationship has been a long one. Upon the termination of the relationship. you are a woman and you take on the role of wife.
when a partner dies. paying rates and supplying other household necessities. should you decide to terminate the relationship.Cohabitation (‘Vat-en-Sit’) If you are living with your partner in his or her house. 43 Cohabitation agreement Cohabitants need to have an agreement drawn up whereby they create rights and responsibilities for themselves. furniture and other assets acquired during the relationship. In the contract. Very often. you must agree on what should happen with regard to the house. They should also state what should happen when the relationship comes to an end. there have been many situations where. when the relationship comes to an end you will have to make other living arrangements. if you intend to buy a house together with your partner. the couple must agree on how they will conduct their living arrangements. It is important to keep receipts or other documentation in respect of assets which are yours. as your partner is not legally obliged to share his or her house with you. they take everything. so that you can prove they are yours if it becomes necessary to do so. including the assets of the surviving partner. . and state the rights and responsibilities of each of them in the relationship. his or her family come and claim the assets. or one of you buys the house and the other is responsible for buying furniture. For instance.
Paul will give Lerato R3 000 per month. If DD the common home is a rented house or flat. In case of disputes. 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. Paul will be responsible for payment of the bond or rental and Lerato will pay for the rates. who will assist in mediating the dispute. 4. This money will be used for household expenses. 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. Lerato and Paul will share a common home. chosen by both parties. Paul and Lerato agree to see a counsellor or a third person.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. . it is better that both cohabitants sign the lease. buy furniture and be responsible for household necessities. 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. 3. 5. 2.
. The termination of the relationship automatically terminates all rights and duties in terms of this agreement.... when one of the partners does not want to continue with the relationship.. cancellation or addition will be valid unless it is in writing and signed by Lerato and Paul. ..... 8. through separation or death of either Paul or Lerato.... No court order or divorce procedure must be followed.. 7.... . This document represents the agreement between Lerato and Paul.. Paul Jay 45 Dissolution of a cohabitation relationship A cohabitation relationship can be terminated at any time... subject to entitlements that are due to the parties upon the termination in terms of this agreement. Upon the termination of the relationship........Cohabitation (‘Vat-en-Sit’) 6. No variation. 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.. Lerato John ..
3. 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. 2. enter into it at their own risk. It is better to enter into a cohabitation agreement so that both parties are protected.46 A Simple Guide to South African Family Law General notes about cohabitation DD Cohabitation is not legally recognized and partners 1. this might come in handy when the relationship ends or your partner dies. .
A parent or legal guardian who has guardianship of a minor child must: (a) Administer and safeguard the child’s property and property interests. – Consent to the child’s adoption. contractual and other legal matters. 47 . The terminology has also changed and the law no longer refers to parental power. (b) Assist or represent the child in administrative. the terminology of guardianship.Children ChaPter 5 47 Children The Children’s Act 38 of 2005 now regulates the relationship between children and parents. custody and access. including: – Consent to the child’s marriage. but to parental responsibilities and rights. care and contact. (c) Give or refuse any consent required by law in respect of the child. access and custody is used to make it easier for you to understand. Parental responsibilities and rights In this section. Guardianship This is the duty and authority of a parent or other legal guardian to make major decisions affecting a minor child.
. The court often gives custody of young children to the mother. – Consent to the child’s application for a passport. custody will be given to the father. each one of them can exercise his or her parental responsibilities without the consent of the other parent or legal guardian. the consent of all the persons who have guardianship of the child is required. – Consent to the selling or mortgaging of any immovable property of the child. In respect of the matters listed in (c) above. If more than one parent or other person has guardianship of the child. but if it is in the best interests of the child. the non-custodian parent can apply to the High Court for custody of the child. The court will grant this application only if this is in the best interests of the child. however. It is important that parents consult each other when dealing with issues relating to their child. • 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. This decision must be made in the best interests 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.48 A Simple Guide to South African Family Law – Consent to the child’s departure or removal from the Republic of South Africa. • Couples going through a divorce have to decide who will get custody of the child after divorce.
Access (contact) Access refers to the situation where a parent who does not have custody sees and spends time with his or her child. Every parent who does not have custody of his or her child has a right to have access to the child. . for example. Maintenance See the section on maintenance (Chapter 6) for further discussion. Advantage of joint custody • This allows both the parents to remain involved in decisions concerning the day-to-day life of the child. 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.Children 49 Joint custody (joint care) This is when both parents share custody of the child. • The child may have to live with both parents. The details of how this access is structured must be agreed between the parents or. next week with the mother. which may affect the child. Access should be denied only if it is not in the best interests of the child. This will cause instability in the child’s life. ordered by the court. if they cannot agree. this week with the father.
including the likely effect on the child of any separation from either or both parents. . the best interests of the child are still the key consideration in all matters affecting the child. 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. maturity and developmental stage and his or her physical and emotional security. in an environment like that of a caring family. • The likely effect on the child of any changes in the child’s circumstances. when this is not possible. • The child’s age.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. • The practical difficulty and expenses of a child having contact with the other parent. • The needs of the child. • The exercise of parental responsibilities and rights in respect of the child. including the child’s needs to be brought up in a stable family environment or. In terms of the Act and the South African Constitution. • The attitude of the parents towards the child. or from siblings or any other person with whom the child has been living.
These include: • To care for the child. or – Any time between the child’s conception and birth. • To maintain contact with the child. has full parental responsibilities and rights in respect of a child.Children 51 Parental responsibilities and rights A parent has full or specific parental responsibilities and rights in respect of a child. Unmarried fathers The unmarried biological father can have full parental responsibilities and rights under the following circumstances: . 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. • To contribute to the maintenance of the child. or – The time of the birth of the child. • To act as guardian of the child. whether married or unmarried. 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.
social worker. Parenting plan Parents who both have parental responsibilities and rights in respect of a child can enter into what is called a parenting plan. and (ii) tried in good faith to contribute to the upbringing of the child for a reasonable period.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. (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. (ii) and (iii) above. or paid damages in terms of customary law. This is an agreement between parents . social service professional or any other suitably qualified person. the matter must be referred for mediation to a family advocate. (c) When he has: (i) consented and identified himself as the father of the child. When unmarried biological parents do not agree on whether the father has satisfied the requirements listed in (c)(i). and (iii) contributed or tried in good faith to contribute to the maintenance of the child for a reasonable period. This agreement takes effect only if it is registered with the family advocate or made an order of court.
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.
. 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. or to have a significant adverse effect on the co-holder’s exercise of parental responsibilities and rights in respect of a child. . . When the children are with the father. . . . . .. the mother is an ON DUTY parent. DD Critical decisions: this refers to any decision which is likely to change significantly... . . . (Name of child) 4... ..... .. . . . . We agree that the ON DUTY parent will make decisions about the day-to-day care and control of the children. . . . Father 3.. . .. . .. . ... (Name of child) Regarding the following children: 1.. .. . ... .. .. . . . . (Name of child) . ... .. . . .. . . .. . . . . . .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. . . . . . .. Mother 1. . . . (Name of child) 2.. . . . . . . ...... . .
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........... they shall be staying at the following address: . The June/July holiday and the December/January holiday will be divided in half............... and each half will be regarded ..............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..... 4.... Both of us agree that should the child stay at another residence.... which will begin at 17h00 on the Friday and end at 17h00 on the Sunday.... 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.......... Residence (if the parents are not living together) When the children are with the mother... When the children are with the father they shall be staying at the following address: ..................... we shall inform the other parent about this in advance. 3... 57 2..
We agree to change the arrangements set out above. the parent concerned shall inform the other parent as soon as is reasonably possible.58 A Simple Guide to South African Family Law as a school holiday period. If either of us wants to convey a message to the other. should this be in the best interests of the children. we shall call them ourselves. We agree that we shall not ask the children to give messages to the other parent. We shall not ask the children about the other parent and his or her relationships. 6. 7. 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. The children will spend every alternate Christmas Day with each parent. . 5. We agree to keep our conversation short and calm if we need to communicate with each other while the children are present. Flexibility Should something unexpected or unavoidable arise in respect of the children. We agree to treat each other with respect and dignity in the presence of our children. Communication We agree that we will not communicate with each other in a hostile or rude manner in front of the children.
as appropriate. We both agree that we will encourage our children to keep in regular touch with the other parent. Education We agree that we will both be responsible for the payment of school fees. in accordance with our respective financial means. in accordance with our respective financial means.Children During separation from the children. If the children do not have cellphones. each parent has a right to maintain reasonably frequent contact with the children by telephone. We both agree to support our children financially in taking extramural activities. 59 8. Extended family We both agree that our children will maintain ties with grandparents. the ON DUTY parent must allow the children to talk to the other parent using a landline or on his or her cellphone. progress and educational requirements. We will together make major decisions regarding schooling and activities that the children will undertake. 9. Each of us has a right to contact the children’s school to find out about their needs. and we agree to encourage our children to maintain contact with them from time to time. relatives and other people important to them. .
12. The children shall be on the …’s medical aid. In a medical emergency. appoint the non-custodian parent to be the child’s custodian parent after the custodian parent’s death. including members of our respective families. We agree to consult each other regarding major health care decisions in respect of the children. Child care If it happens that the ON DUTY parent needs someone to care for the child on a temporary basis. in his or her will. 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. provided that this continues to be in the best interests of the children. Death (if only one parent has custody/care of the children) We agree that the custodian parent shall. the surviving parent will refer the matter to court and the legal fees should lie with the deceased’s family. Should the family of the deceased refuse to allow the surviving parent to exercise custody of the children.60 A Simple Guide to South African Family Law 10. the other parent shall be offered the opportunity to care for the child before a third party is sought. As parents. . we agree that the other parent has rights and responsibilities over the children in preference to all other persons. 11. Health care We each have a right to access/have knowledge of our children’s medical information and records.
...... Father . this also applies if the agreement has been made an order of court... Witness 2 .... Disputes Should one of the parents violate the terms of this agreement or not follow a part of this agreement. both parents are bound by the terms of this agreement. Witness 1 .... Until the agreement is set aside........ we agree to take the matter through mediation before resorting to court...... Duration This agreement shall be valid until cancelled or amended in writing by the parents or an order of court...... Witness 2 ......... the parties must apply to the Family advocate to have the agreement amended or terminated...... Mother . Signature ........... Any changes shall be made in writing........... Witness 1 .......Children 61 13...... 14......... In the event of a disagreement....... and if the dispute is not resolved.................. DD the parties have a right to have this agreement reg- istered with a Family advocate......
• The wishes of the child. an application must be made to the High Court for consent. . the relocation will be allowed. • Whether separation from the other parent will severely prejudice 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.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. Rights of a parent whose child has relocated • The parent will be given reasonable access. If the reasons for the relocation are reasonable and will serve the best interests of the child. unless a settlement agreement or a court order says otherwise. • The advantages and disadvantages of the relocation to the child. if the child is old enough to talk on his or her behalf. If one of the parents refuses to consent to the removal of the child from South Africa. Factors which the court looks at are the following: • The reasons for the relocation.
• A social worker will be appointed. • A single person. • The social worker will hold interviews with the person who wants to adopt. including a widow. The consent of the father will be required only if he has acknowledged paternity in writing. He or she acquires full parental responsibilities and rights towards the child. only the consent of the mother is required. • The social worker will also assess the life situation. personal circumstances and financial means of the person who wants to adopt. • In respect of a child born outside marriage. consent of both parents is required. Requirements • If the child was born within a marriage. Procedure for adopting a child • An application to adopt must be made at the children’s court.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. • The consent must be in writing and signed in the presence of a commissioner of child welfare. • A couple in a same sex relationship. divorced or unmarried person. . A child may be adopted by: • Husband and wife jointly. • A married person whose spouse is the parent of the child.
Both parents must take part in raising their child or children. 2. • 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. • Ensure that the required consent has been obtained. • Consider the report of the social worker. Consequences of adoption • Adoption terminates the relationship. General notes about children DD the best interests of the child are the most important 1.64 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. . Parents must always put aside their differences for the benefit of the children. factor regarding the welfare of the children. • Assess whether the person who wants to adopt is a fit and proper person. 3. • Assess if the person who wants to adopt has adequate resources to educate and maintain the child. rights and obligations that exist between the child and the biological parents and their relatives. Criteria for adoption The court will do the following: • Assess whether adoption is in the best interests of the child.
Maintenance ChaPter 6 65 Maintenance What is maintenance? Maintenance is the duty to support someone else financially. Parents have a legal duty to ensure that children are provided with these. clothing. Child maintenance Every child has the right to food. medical care and schooling. 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. or has been adopted by them. • The person who is liable to pay maintenance must be in a financial position to afford the maintenance. or outside the marriage. Procedure for getting maintenance There are three ways in which a maintenance order can be obtained: 65 . • The person requiring maintenance must need financial help. shelter. irrespective of whether the child is born within the marriage.
Steps for claiming maintenance in court 1. which is the local magistrate’s court. 2. the child’s birth certificate. Maintenance order by default This happens when the parent responsible for maintenance does not appear in court for the maintenance hearing. The court can make a maintenance order against the parent in his or her absence which the court considers to be an appropriate order. bills and receipts. payslip. copies of living expenses. The parents are given a date to appear in court and the court will make a decision regarding maintenance. The other parent is then summonsed to appear in court. although he or she has been subpoenaed and has knowledge of the date and time of the maintenance hearing. The parent suing for maintenance (called the applicant) must go to the maintenance court. Maintenance order by consent The parents agree in writing to the content of the maintenance order to be granted. The maintenance officer will assist the applicant in lodging the maintenance claim and in completing the forms. These should . A copy of the written consent is then handed to the maintenance officer in court and is made an order of court.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).
. extramural activities. The presiding officer will consider all relevant information. the maintenance officer will ask both parties to sign a form consenting that the maintenance agreed upon be paid. Summons will be served on the parent who is sued for maintenance to appear in court. and so on. together with the maintenance officer.Maintenance include rent. clothing. will sit together to discuss and decide how much maintenance should be paid. groceries. the matter will be heard in court. Formal hearing If the parents are unable to reach an agreement. school. 3. and medical bills. If there is an agreement. the parent responsible for maintenance. and a decision will then be made. 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. 67 Maintenance hearing Informal hearing The maintenance officer will send a letter to the sued parent to come to court. taking into account food. school fees. and the home or work address of. and that form will be made an order of court. Payment of maintenance In deciding how much maintenance money to order. transport. The applicant must also bring contact details for. The parents. 4.
The maintenance officer will summon the defaulting parent to appear in court. 2. The one who cannot afford to pay maintenance does not have the financial means to do so. How much the mother earns. The one who refuses to pay maintenance money simply refuses even though that parent may have the financial means to pay. If the parent does not appear in court. When a parent who has been ordered to pay maintenance does not pay it. • The applicant must apply to the maintenance court for the attachment of emoluments.68 A Simple Guide to South African Family Law The court will look at: • • • • • The reasonable costs of raising the child. the court can order the following: An attachment of emoluments (garnishee order) The money will be deducted from the salary of the defaulting parent. 3. the following can be done: 1. Whether the sued parent can afford the amount being claimed. . 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. Each parent’s financial obligations. How much the father earns. The other parent (the applicant) has to lodge a complaint at the maintenance court.
Warrant of execution The property of the defaulting parent can be attached and sold. • 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. the courts are obliged to order this retention only if the parent has been convicted of defaulting. Warrant of arrest The defaulting parent can be arrested. . a warrant for his or her arrest will be issued. • A date for the hearing will be set and the defaulting parent will be summonsed to attend. 69 for example from a sale of property. against the immovable property. If DD the defaulter is about to receive a lump sum of money. • You have to lay a complaint at the maintenance court. the maintenance officer must give notice plus a copy of the maintenance order to the employer of the defaulting parent to make payments. an inheritance. • The warrant will be issued by the clerk of the maintenance court and given to the sheriff to serve. the courts have the power to order that part of that money or all of it be retained for future maintenance of the children.Maintenance • When the emoluments attachment order has been granted. If the defaulting parent does not attend the hearing. if it is insufficient. The proceeds of the sale are then used to pay for the maintenance. or a pension fund payout. but can make such an order in other cases on application by the other parent.
he or she has a right to claim financial support from his parents. If the child is above the age of 18 years and is in need of financial assistance. for example. If the child marries. Maintenance of parents by their children There are certain circumstances in which a child can be held legally liable to support a parent. If. . A parent who requires maintenance has to prove that: • He or she is not working or earns too little to support himself or herself. This also applies to a situation in which the mother whose financial support the child needs cannot afford maintenance. a child is a person under the age of 18 years. • He or she has no other source of income or means whereby they can generate sufficient money to support themselves. • Closer relatives of the parent cannot support him or her (for example. the grandparents can be sued for maintenance. Maintenance of a child by grandparents If parents of a child cannot afford to maintain the child. Maintenance of a child stops once the child becomes self-supporting. the father of your child is not working and cannot afford maintenance but he has parents who can afford to maintain the child. his or her spouse is responsible for maintenance. the duty falls on the grandparents on the sides of both parents.70 A Simple Guide to South African Family Law Duration of child maintenance In terms of the Children’s Act. but her parents can. his or her spouse).
therefore. the custodian parent can claim maintenance for the child from the estate of the deceased parent. he still has the legal right to see and 2.Maintenance The court will hold a hearing and decide whether the child can afford to maintain his or her parent. the other parent who does have such means will be responsible for the entire maintenance of the child. shelter and medical care. If the parent is married to another spouse in community of property and one of them is not working. 3. the child will be ordered to pay maintenance. by marriage to another spouse or remarriage after divorce. 4. 71 General notes about maintenance of children DD a parent’s duty to maintain a child is not affected 1. . and the one is not dependent on the other. that parent’s maintenance contribution will come from the joint estate of the marriage. there is a difference between maintenance and access to the child. if the father is not paying maintenance. For example. 5. Both parents still have a legal duty to support their child. if one parent does not have the financial means to make any contribution. clothing. If it is proved that the child can afford to maintain the parent. If a non-custodian parent who is liable to maintain a child dies. each parent must contribute towards the maintenance of the child according to his or her means. The parent’s maintenance will be restricted to basic needs such as food.
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:
it will make a ruling that maintenance be paid to the spouse who applied for it. 6. Once the court is satisfied that there is a need for maintenance. Both spouses’ earning capabilities and their existing or prospective income and other assets. The spouses’ financial needs and obligations (both the husband and wife’s financial needs and obligations). If in the future you need financial support. 2. The applicant spouse’s standard of living while they were married. 3. The duration of the marriage (how long the marriage lasted). you can then apply for an increase of this amount at the maintenance court. You can apply for maintenance and ask the court to give you R1 or R10 monthly (token) maintenance. Any other factor which might be relevant. 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. 4.Maintenance 1. . The applicant spouse’s age. you can apply for what is known as token maintenance. 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. 5.
If you are older. and in most cases. it awards it only for a specified period of time.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 spouses have no children or no young children and the former spouse can earn his or her own living. – You need financial help in getting back on your feet. have been married for a long time and were dependent on your husband. there is a high . – You have small children you are looking after and you are not in a position to go back to work. – the former spouse is in good health and can still work. 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 marriage lasted for a short period. 2. You must convince the court that you need the maintenance in order to get it. 3. and can earn his or her own living. – the former spouse is well qualified and can get a job. For example. – there are other factors which compel you to have financial assistance. you may use any one or more of the following arguments: – You are too old to find employment.
it can take the form of: – monthly payments. quarterly payments).Maintenance possibility that the court will order the other spouse to maintain you. 77 . and/or – a lump sum payment. When maintenance has been ordered. – other periodic payments (for example. 4.
78 . dating couples. Kicking. Pushing. It occurs between people who are in a relationship with each other. The truth is that domestic violence can happen to anyone.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. ex-partners. These relationships include married couples. There is also a perception that domestic violence happens only to certain kinds of people. These include the perception that domestic violence is a family problem and should be treated as a private matter. Domestic violence occurs on a daily basis but people are still afraid to talk about it. children. There are also many wrong perceptions regarding domestic violence. It includes: • • • • Slapping. and members of the same household. Punching. Forms of domestic violence Physical violence This is when physical harm is inflicted on a person’s body.
79 Sexual abuse This is any conduct that abuses. your friends. your family. . Emotional and psychological abuse This is any emotional. • Forcing you to do sexual acts that you do not like. for example by telling you what you can do and what you cannot do. stopping you from having friends. • Burning the spouse or partner with hot water or other things such as cigarettes. ridicule. humiliates. • Controlling. • Being disrespectful to you and saying bad things about you. and so on. verbal and psychological behaviour that includes: • Insults. • Having affairs with other people.Domestic Violence • Biting. degrades or violates a person’s sexual integrity. This may include: • Your partner or ex-partner forces you to have sex with him or her. controlling your movements. • Stabbing or shooting. and isolating you from your family. • Forcing you to do any sexual act that you find degrading. • Any other act which causes you emotional or psychological pain. • Any other harm which is inflicted on your body. or name-calling. • Forcing you to have sex with someone else. • Threats. • Using children to control you.
It includes: • • • • • Not letting you work. • Misusing your money. Stages of domestic violence in a relationship Stage 1: Honeymoon stage This is the period in the relationship where everything is good. Other forms of abusive conduct These include: • • • • Harassment. Not letting you have a say in the finances of the house. The relationship starts to be tense. Any other controlling or abusive behaviour that harms or may cause harm to you.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. Taking away the money you have earned. Stage 2: Tension stage This is when one partner starts to complain and accuses the other about things they did not do. Refusing to pay for household needs. Stalking. . The couple is in love and everything is going well. Refusing to give you money. Causing damage to property.
After a while. • Abused people are made to feel guilty if they want to get out of the relationship. sometimes within a short period of time. the abuser will start with his or her abusive ways again and the parties will be back at stage two and then three. • Others are isolated from friends and family. Sometimes abusers are really sorry and sometimes they are just pretending. 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. 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. They often find themselves not having anyone to turn to or lack knowledge of where to seek help. The abuser will also start to buy gifts and give the other partner attention.Domestic Violence 81 Stage 3: Abuse stage This is when one partner abuses the other. This cycle will occur until the abused person puts a stop to it. The abused person will forgive the abuser and the relationship will go back to the honeymoon stage. in most cases. Why do abused people find it difficult to leave an abusive partner? • Many blame themselves and see the abuse as their own fault. in most cases by being physically abusive. .
Procedure to follow You go to court on two separate days. . The abuser is also called to appear in court on this day. The first time is when you make an application for a protection order. such as his or her work address and home address. 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. photographs of the injuries. The process is as follows: Step 1 • You go to the magistrate’s court and apply for a protection order. neighbours or children who know about the abuse. A return date will be set and you have to go back to the court for the second time. The magistrate will then give you a temporary protection order. Step 2 • The magistrate will listen to your story and read any affidavits that you have brought with you. supporting affidavits from family members. • Take with you any documents like medical reports. The magistrate will give you a temporary order.82 A Simple Guide to South African Family Law Protection order Getting a protection order To get a protection order. You must also take your Identity Document and details of the abuser.
This means that the police will arrest the abuser if he or she violates the protection order. the magistrate will decide whether to make the temporary protection order a final order or set it aside.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. the magistrate will make the temporary order a final order. • If the abuser does not come to court. 83 Step 3 • The sheriff of the court or the police will serve the protection order on the abuser. The abuser should also be there. • 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 . – For the abuser to be evicted from the home you share. Step 4 • You must go to court on the date written on the protection order. • After hearing both sides. he or she will also issue a conditional warrant of arrest in respect of the abuser. – For the police to come with you to collect your belongings at your home. • Both of you will get an opportunity to tell the magistrate your side of the story. • The protection order tells the abuser that he or she must be at court on a date written on the protection order. • The clerk of the court serves the final protection order on the abuser.
You must bring along the warrant of arrest that is attached to the protection order. • The order lasts until it is cancelled. customary.84 A Simple Guide to South African Family Law station that you choose. . • Family members and friends of the abused person. • People who are living together but are not married. Who can apply for a protection order? • A spouse who is married according to civil. provided that they have the written consent of the abused person. • Tell the police how the abuser violated the protection order. • You can also lay charges against the abuser – for example for assault. • The police can warn or arrest the abuser as a result of the violation. • People who are engaged. You will also get a copy of the order. religious law or civil union. or for pointing a firearm at you. • People who are dating. You do this in the form of a statement given under oath. 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.
Get a protection order. 4. Cancelling the protection order If you want to cancel the protection order. after you have cancelled it. you can apply to move into a shelter. they start again with their abusive ways. 3. you must give written notice to the abuser and apply to the court to withdraw the order. An abused person needs to acknowledge that he or she is in an abusive relationship and that it is not his or her fault. If you have no place to go to. Be alert! DD abusers have a tendency of being apologetic and promising to change. 2.Domestic Violence 85 What happens to the abuser? If the abuser is arrested. How to get out of an abusive relationship 1. . Contact advisory centres or support groups in your area. they do this in order to make you cancel the protection order or any other legal action. You can get their details at the police station. he or she can be sent to jail until a court appearance or warned and told to appear in court on a certain date. 5. Get help. Talk to family members or friends or go to the police.
. 3. Getting help from the police and applying for a protection order are free of charge. 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. • The environment is friendly and everybody is supportive. General notes about domestic violence DD an abused person has a right to call the police when 1. if the police reasonably suspect that the abuser has committed an offence involving physical violence. Do not let your economic dependency be the reason your partner treats you badly. 2. • Shelters provide support and counselling. the abuse occurs. Advantages of a shelter • It is a safe place. 5.86 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. 4. the police have a right to arrest an abuser at the scene of an incident of domestic violence without a warrant of arrest.
If the deceased was married in community of property. Only once the 87 . that person is referred to as having died intestate. A deceased’s estate consists of liabilities (debts) and assets (properties. if the person has not left a will. only certain people. and so on).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. and adopted children. blood relatives. When a person dies. money. children. In terms of intestate succession law. These beneficiaries are: the deceased’s legal spouse. the surviving spouse might have a claim against the deceased’s estate for an accrual share. If the deceased was married out of community of property but with the accrual system. car. household furniture. their assets will be distributed either in terms of their will (testate succession) or according to the rules of intestate succession. can inherit from the deceased’s estate. This means that the deceased’s assets and property will be distributed in terms of the Intestate Succession Act 81 of 1987. Intestate succession (dying without a will) When a person dies without leaving a will. called beneficiaries. the surviving spouse must receive his or her half share of the joint estate.
the law says that a spouse must receive r125 000 or a DD child’s share. Firstly the child’s share has to be calculated. Take R600 000 and divide it into four. Example 1 John dies and he leaves his wife Mary and three children. whichever is the higher amount. The result will be R120 000. You take R600 000 and divide it by five. sub- . All four will get R150 000 each. plus one (the surviving spouse). The result will be R150 000. Procedure for inheriting intestate When the deceased has left a spouse and children The spouse and biological children will inherit. Because this amount is less than R125 000. To calculate a child’s share you divide the value of the estate by the number of children of the deceased. His estate is worth R600 000 after payments of debts. a child’s share must be calculated. can the deceased’s estate be distributed. Example 2 John dies leaving behind four children and a wife.88 A Simple Guide to South African Family Law debts have been paid off. Child’s share When a spouse dies and is survived by a surviving spouse and children. 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. after payment of debts. His estate is worth R600 000.
If any of the deceased’s children have died and have left children of their own (for example. He also left behind a wife and two children. A child’s share has to be calculated first. and also receives the R300 000 by virtue of the marriage in community of property. Mary has to receive her half share before distribution can occur. They will then divide the share that would otherwise have gone to their deceased parent equally between them. the children will take the place of their deceased parent and inherit his or her share. the surviving spouse will inherit the . The children will share the remaining amount equally. Mary will receive R125 000 and the children will share the rest of the money. Mary inherits R125 000. When only a spouse survives the deceased When married spouses do not have children and one of the spouses dies. 89 DD the examples above. John dies and leaves a joint estate worth R600 000 after payments of debts. In the end. Example 3 John and Mary were married in community of property. the marriage was out of comIn munity of property. Because the amount is lower than R125 000. Mary will firstly receive R300 000 under matrimonial property law. R600 000 divided into two is R300 000. grandchildren of John).Inheritance and Wills tract R125 000 from the R600 000. Mary and the children will then share the remaining R300 000. R300 000 divided into three (Mary and two children) is R100 000.
aunts. the deceased’s estate will be inherited by his siblings equally. 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. an adopted child can inherit from his adoptive parents and their blood relatives. children. and so on. brothers and sisters will inherit nothing. each one will inherit half of the estate. for example. cousins.90 A Simple Guide to South African Family Law entire estate. Only if the parent does not have children or grandchildren will the other parent inherit the entire estate. the child cannot inherit from the natural parents and their blood . When the deceased does not have a spouse. If only one parent is alive. When the deceased dies without a spouse or children If the deceased’s parents are still alive. his or her father. the dead parent’s children or grandchildren will inherit in the place of their parents. 2. When only the children survive the deceased The children will inherit the entire estate and share it equally. The deceased’s parents. uncles. Close in terms of blood relations means. If one of them has passed away leaving children. the children will inherit the share of the deceased’s sibling. Where there are no parents. General notes about intestate succession DD an illegitimate child has a legal right to inherit from 1. parents or siblings The closest blood relative of the deceased will inherit.
• He or she must be a person of sound mind. must be mentally capable. that person has died testate. The testator must sign it at the end in the presence of at least two witnesses. However. for example. What is a will? A will is a written document in which a person. if it is drafted by a lawyer. in other words. called the testator. If the will is more than one page long. If the testator cannot read or write.Inheritance and Wills relatives and they in turn cannot inherit from the child. every page must be signed by the testator. there are circumstances whereby a third person can draft a will on behalf of the testator. • The testator must draft the will personally. The will must be in writing. voluntarily stipulates how his or her estate will be distributed after his or her death. 91 Testate succession (dying with a will) When a person dies and has left a will. 2. Drafting a will Requirements for drafting a will • The testator must be over the age of 16. the only time they can inherit is when they are named as beneficiaries in the child’s will. Procedure for drafting a valid will 1. he can sign by . or by a third person on behalf of a testator who cannot read or write.
a commissioner of oaths must attest the document. the will must be signed in the presence of the testator. 4. In either of these cases. or if someone else signs the will on the testator’s behalf. 5.92 A Simple Guide to South African Family Law making a mark (X). Two or more witnesses must sign the will in each other’s presence and in the presence of the testator. or someone else can sign on his or her behalf. two witnesses and a commissioner of oaths. 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. If the testator signs by a way of a mark (X). . 3.
. a widow of 34 Sam Street. I leave my car to my son … and my house and its contents to my daughter … . 3.. I hereby revoke all previous wills that I have made. Mpho Lerato (Testator) ...... Mpho Lerato (ID 8407090020088).. . as executor of my estate............ Witness 2 .... in any existing or future marriage of such beneficiary.... specifically the power of assumption.. 4..... I nominate my grandchild. Witness 1 .... No benefit which is due to my beneficiaries in terms of this will shall form part of the joint estate.. 1.. Pretoria.........Inheritance and Wills 93 Example of a will Single testator WILL OF MPHO LERATO I.... hereby declare that my estate must be distributed as set out below... Rose Molefe... The nominated executor is also exempted from the provision of security to the Master of the High Court... 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. and I confer on her all powers allowed by law.. 2.... or form part of the accrual system.
. John Paul Moloto Jr. our son. John Paul Moloto Jr. whether jointly or separately. 6. We revoke all previous wills made by us. will inherit our entire estate. we leave our entire estate to our son. 4. Should one of us die before the other. 2. 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. 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. 1.94 A Simple Guide to South African Family Law Joint will WILL OF REFILOE AND KGOMOTSO MOLOTO We. declare that our property must be distributed as follows. 3. John Paul Moloto Jr shall take possession of the property in the estate only after the surviving spouse has passed on. the undersigned Refiloe Moloto (ID 4456709823454) and Kgomotso Moloto (ID 4098549009123) Married in community of property and presently residing in Durban. 5. We nominate John Paul Moloto Jr as the executor of our joint estate. Should we die simultaneously.
. Witness 1 ...... 4...... Refiloe Moloto ............. the surviving spouse has a right to claim a half share of those assets... Witness 2 95 General notes about inheritance and wills DD Comply with all the legal requirements to make 1.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.......... it is advisable that you and your spouse make a joint will. always review your will regularly..................... half of the assets that form part of the joint estate belong to your spouse and you cannot give them away. When you are married in community of property.... 3. When you are married in community of property..... 2.... the will valid........... .. If a deceased spouse leaves assets that form part of the joint estate to someone else.. Witness 2 .... ............................ Witness 1 ...... Kgomotso Moloto .
the testator dies before the three-month period has passed. It is very important to make a will. If. if you do not want your ex-spouse to inherit. When making a will. this will assist you in making sure that the legal requirements are complied with. 7. When a married spouse has made a will and subsequently divorces. 8. the ex-spouse will inherit if he or she was named as a beneficiary in the will. it is important that after divorce. accordingly. If the will is not changed and the testator dies later than three months after divorcing a spouse. this prevents family disputes regarding the deceased’s assets. that spouse has three months’ grace period to change the will. you should get the assistance of a person who has knowledge in drafting wills.96 A Simple Guide to South African Family Law 5. the estate of the testator will be distributed as if the ex-spouse had already passed away. 6. . however. you must change your will and remove that spouse as a beneficiary.
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.za General legal matters • Legal Aid Board: 086-105-3425 • Law Society of South Africa: 012-366-8800 • Attorneys’ website: www.doj.za 97 .co.attorneys.gov.
za www. www. Schoeman-Malan. 5.za www.co. Legislation 1. MJ & Schoeman. Lynnwood.za Books 1. Van Zyl. Abrie. Divorce Act 70 of 1979 98 .98 A Simple Guide to South African Family Law Bibliography Internet websites 1. 2nd edition. Children’s Act 38 of 2005 2. Cronjé.org.powa. 6.doj. 3. P de W. 2.paralegaladvice. (1999) Law of Succession Student Handbook.concourt. Civil Union Act 17 of 2006 3.za www. MC & Van der Spuy. (2004) South African Family Law. CR. W. (2005) Handbook of the South African Law of Maintenance.gov.za www. 5th edition. Graham. 4. DSP & Heaton. 2nd edition.capegateway. Durban: LexisNexis Butterworths.za www.org. (2003) Deceased Estates. 3. L.gov. 2nd edition. J. MC. Durban: LexisNexis Butterworths.agenda.gov. Pretoria: ProPlus Publishers. 2. De Waal. Wetton: Juta & Co Ltd. 4.
7.Bibliography 4. 5. 8. Wills Act 7 of 1953 99 . 6. 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.
23 agreement 43–45. 49. 64 after divorce 29 formalities of parenting plan 53–55 100 . 58.100 A Simple Guide to South African Family Law Index Figures in bold indicate examples of forms. 50. 44–45 B and marriage. 64 joint estate dissolution 18 Children’s Act 38 of 2005 47. 62. 41–42 50. 29. 62. rights 47–52 55. 58. 15–17 58. 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. 49. 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. 47. A Children’s Act 38 of 2005 (cont) parental responsibilities and access (contact) 25. 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. differences best interests of children 3. 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. 53. 62. written 16 50–52 custody (care) 29. 49. 48. 53. custody of and access to children 50. 18. 62. 48. 72 parenting plan 52–55. 48–49 joint 49 best interests of child 48. 53. 49. 54.
8–9 G guardianship 47–48 H High Court 3. 6. 21. 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. 6. 11 I inheritance and wills 41–42. 87–96 definition of a will 91 drafting a will 91–92 intestate succession 87–91 testate succession 91–96 101 . 22. 27. 7. 93 Home Affairs (department of) 1.Index customary marriage 4 difficulties with registration 6–7 founding affidavit 8–9 lobolo 4. 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. 4. 6. 48. 7. 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. 2. 17. 62. 7. 25–26.
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.102 A Simple Guide to South African Family Law L lobolo 4. 73–74. 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. 73–74 children 65. 7. 96 definition of 91 drafting of 91–92 joint 94–95 single testator 93 . 8 Lobolo Agreement 6. 7. 49. 6. 8 M maintenance 41. 27. 93–95. 65–77 after death 41. 27. 76–77 W will 14. 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. 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.
This action might not be possible to undo. Are you sure you want to continue?
We've moved you to where you read on your other device.
Get the full title to continue reading from where you left off, or restart the preview.