Category: Family Law

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Deceased Estates Divorce Family Law

DIVORCE AND YOUR LAST WILL AND TESTAMENT

A divorced person has THREE MONTHS to change his or her will.

From the date of a divorce being granted, the FORMER SPOUSE IS DISQUALIFIED TO INHERET in accordance with the last will and testament of the testator, for a period of three months.

We can assist you to draft your new will.

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Divorce Family Law

DIVORCE

IRRETRIEVABLE BREAKDOWN OF A MARRIAGE

Section 4(1) of the Divorce Act 70 of 1979 provides for two distinct requirements to establish an irretrievable breakdown of the marriage:

  • The marriage between the parties has irretrievably broken down.
  • No reasonable prospect of a normal marital relationship between the parties.

Section 4(2) of the Divorce Act 70 of 1979 provides examples of marriage breakdown:

  • The parties have not lived together as husband and wife for at least one year.
  • The defendant committed adultery, and the plaintiff cannot continue with the marriage.
  • The defendant is declared a habitual criminal and is in prison.
Categories
Divorce Family Law

GROUNDS FOR DIVORCE

Section 4 and Section 5 of the Divorce Act 70 of 1979 provides for the following grounds for divorce:

  • Section 4: The irretrievable breakdown of the marriage.
  • Section 5: Mental illness or continuous unconsciousness of a party to the marriage.
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Family Law

STEPS IN AN UNCONTESTED DIVORCE

  1. Consultation with the client.
  2. Issuing of a case number at court.
  3. Summons and Particulars of Claim is served by the Sheriff on the Defendant.
  4. Parties agree to the terms of the Settlement Agreement.
  5. The Settlement Agreement is sent to the Family Advocate for endorsement when minor children are involved.
  6. Hearing date is issued by the court.
  7. The Plaintiff and his / her Attorney attend to court on the date of the hearing.
  8. Both the Plaintiff and the Defendant will attend the hearing when minor children are involved.
  9. The decree of divorce is issued by the court.
Categories
Family Law

CHILD MAINTENANCE

WHO IS RESPONSIBLE TO PAY TOWARDS CHILD MAINTENANCE?

The duty to pay towards chid maintenance rests on both parents of the child according to the means of each parent

CAN A PARENT WITHOLD CHILD MAINTENANCE IF HE/SHE DOES NOT HAVE CONTACT WITH THE CHILD?

No. Paying towards child maintenance and not having any contact with the child is two separate matters. A parent is not entitled to stop contributing towards child maintenance if for example he/she remarries, or if he/she is not allowed any contact with the child.

WHAT HAPPENS IF A PARENT DOES NOT PAY CHILD MAINTENANCE?

Failure and/or refusal to make payment in accordance with the Divorce Settlement Agreement and/or Maintenance Agreement, which is an order of court, you are guilty of a criminal offence and you can be liable to pay a fine as ordered by the court, or alternatively the court can order you to a period of imprisonment.

Categories
Family Law

ANTENUPTIAL AGREEMENT

What is the purpose of an Antenuptial Agreement?

To ensure the terms and conditions of the financial aspects of the parties to the marriage are agreed to between the parties before entering into the marriage.

What are the different marital regimes?

When getting married, the financial position of the parties can be determined by one of the following three marital regimes:

Married in Community of Property. (He’s is her’s and her’s is he’s)

Married out of Community of Property with the exclusion of the accrual system. (He’s stay he’s and her’s stay her’s)

Married out of Community of Property with the inclusion of the accrual system. (He’s stay he’s and her’s stay her’s, but at a divorce the party whose estate grew the most, has to pay the other party)

What are the consequences of not having an Antenuptial Agreement?

Should you enter into a marriage without having signed and executed an Antenuptial Contract before a Notary, you will by default be married to each other IN Community of Property.

Therefore both parties’ separate estates, which include both assets and liabilities, will become one estate after the marriage is concluded. This is not ideal in our times. A party is then not protected against the other party’ insolvency or creditors.

There is an old saying which describes this situation perfectly “what is yours is mine, and what is mine is yours”