Frequently Asked Questions
Antenuptial Agreements
Inheritance is excluded.
Before entering into nuptials.
A Will is an important legal document that has a significant impact on how your family, or those dearest and dependant on you, live after you die. The task of drafting an appropriate, viable and valid Will should be entrusted to the care of an experienced and caring practitioner and should be reviewed on a regular basis to ensure your wishes are adhered to.
The two regimes are:
1)A marriage in community of property; or
2)A Marriage outside of community of property.
If however, you elect to be married out of community of property, which you must remember is not the default position, you require the execution of an ante-nuptial contract, in which case you have a further 2 choices:
1) Out of Community of Property with the application of the Accrual System; or
2) Out of Community of Property without the application of the Accrual System
i) Marriage In Community of Property.
Here both spouses share equally in the assets and liabilities that either of them own, owe or acquire before or during the marriage.
Written consent of both is, however, required for certain important transactions such as those relating to fixed property, suretyship’s and credit agreements, and informal consent of both is required for transactions such as the selling of goods of the joint household, such as furniture or jewellery. However, consent is not required for transactions relating to the trade, business or profession of the spouses.
Certain advantages and disadvantages are in favour of this regime. The clear advantage here is the joint (50/50) estate, the disadvantage can be conflicts in decision making, and insolvency, which will affect both spouses.
ii) Marriage Out of Community of Property Without The Accrual System
Here, each spouse comes into the marriage with their own assets and debts. During the marriage each spouse retains control of his or her own property, builds up his or her own estate and each is responsible for his or her own debts.
Advantage – Consent of one spouse is not required by the other so as to allow each spouse to enter into transactions, where each spouse is free to build up his or her own estate without the fear of it being attached by virtue of the other spouses insolvency, or being made liable to a possible division upon divorce.
Disadvantages – In this system, if one spouse gives up their career to care for the household or children, they will be severely prejudiced by not benefitting from the estate that they essentially helped to build by enabling the bread winner to build up their wealth.
iii) Marriage Out of Community of Property With the Accrual System
This system was developed by the legislature especially to ensure that some protection is still offered to those parties who elect to marry out of community of property, especially in those situations where, as referred to above, one of the parties remains at home, giving up a career to look after a household or children.
It works in much the same way as a marriage out of community of property without accrual except that upon dissolution of the marriage, either by death or divorce, the estates of the parties will be divided differently in accordance with the respective assets and financial position of the parties.
The way in which this division takes place is that upon dissolution of the marriage, by death or divorce, the difference between the respective values of the assets of each spouse obtained during the marriage – the accrual – will be shared equally between the spouses.
Advantages – During the marriage the competence of the spouses to deal with their property is not limited in any way, provided that the one does not or will not seriously prejudice the right of the other to share in the accrual. It also offers protection during the existence of the marriage against, for example, insolvency of one of the spouses. Further, at the dissolution of the marriage each spouse has a right to share in the growth of the estate, even if they did not financially contribute to it.
Disadvantages – A possible disadvantage, especially in the case of a wealthy spouse, might be that he or she feels that he or she is not quite free to deal with his or her property since the other could apply to court for the immediate division of the accrual should the latter feel that the former, by entering into a specific transaction, might prejudice his or her right to share in the accrual. This may cause friction.
This will then be known as a postnuptial agreement. This is a costly procedure, and the application takes some time, as we will have to advertise the change in the Government Gazette. Notices will have to be dispatched to all creditors and no one should be prejudiced by the proposed change.
Divorce
Should a party file a notice of intention to defend the matter, the matter will be deemed to be a contested divorce. This price will vary depending on the circumstances and costs can become quite high, especially if more than one court day may be required to eventually settle the dispute between parties.
In uncontested proceedings each party will be liable for their own legal fees.
In certain circumstances an Application can be brought by a party to force the other party to contribute to his/her legal fees.
Should the proceedings however be contested, the matter can take around 1 – 4 years to finalize, depending on circumstances.
This will mostly depend on your marital regime and the internal arrangements reached between parties.
If you are married within community of property, the estate ‘should’ be divided equally between the parties. This is however somewhat unrealistic specifically with household and other moveable property. Our advice would be to draw up a comprehensive list of all the household items and other moveable property, and decide between yourselves, who will take which item. Bring this list to your first consultation with your attorney, if consensus between parties can be reached.
Money, pension and immoveable property amongst other things, will be divided equally, unless otherwise mutually agreed to between parties.
Should you be married out of community of property, each party will retain their own property, mutual property can be divided or an agreement can be reached between parties. If you have the inclusion of the accrual system, your attorney will advise you on the way forward.
If the parties are married within community of property, the couple should mutually agree that a certain spouse will retain the property, if the property is bonded, please speak to your attorney.
If such an agreement can’t be reached and should the matter be defended the court will make its decision.
Alternatively, the best solution would be to sell the property and divide the profits thereof.
The parties can decide between themselves, taking all factors into account of their own personal lives, businesses or work, finances and if possible the opinion of the child(ren).
Any settlement agreement to be reached between parties, who have minors, will have to be endorsed by the Family Advocate, who will evaluate the circumstances and best interest of the child(ren).
It is possible for parents to share custody, but the child(ren) should be taken into account when making this decision, as to their age, the stability ultimately provided, the location of the school, the amount of commutes, if both parents will be available and able to assist the minor(s) with their homework, and if this would truly be to the benefit of the minor(s) or if it will cause confusion and instability.
If parents can’t reach an acceptable agreement as to custody, contact, maintenance and care, the Court together with the Family Advocate will make suggestions or an applicable Order, that will be in the best interest of the minor(s).
In a marriage in community of property, both parties are responsible for debt in equal share. A creditor may however, proceed against only one spouse. Should a spouse effect full payment of any debts, a claim may be instituted for payment of half of said paid amount, against the other spouse.
With a legal separation, only assets are divided, but the parties remain married. A divorce dissolves the marriage between parties.
A divorce order can still be obtained if the marriage has broken down.
- Custody of the Children;
- Maintenance, for children and if applicable to a spouse;
- Division of Property;
- Division of Debt.
- Drafting of the Divorce Summons;
- Liaising with all parties and negotiating terms;
- Drafting of Settlement Agreement and Amendments;
- Assessment of advise on the best way forward;
- Application in terms of Rule 43 or Rule 58 – interim order;
- Referal of Settlement Agreements to the Family Advocate for advice or Endorsement
- Protection Order Applications;
- Division of Pension assistance;
In contested proceedings, as it may take some time to finalize, and where a party cannot wait such a significant amount of time, a Rule 43/58 Application may brought.
This is an Application brought on a fairly urgent basis for a party to request interim relied pending the finalisation of the divorce proceedings.
This can include: –
- Maintenance for child(ren) or a spouse;
- Request for a spouse to contribute towards the legal costs of the divorce of the other spouse;
- Interim custody of the child(ren);
- Interim contact and access in respect of the child(ren).
Some divorces unfortunately increase the friction in the household, maybe this has happened before, and you told yourself that it will not happen again, and here we are.
Well an interdict can be of some help.
Grounds for the application: –
- Physical abuse; or
- Harassment; or
- Sexual abuse; or
- Intimidation; or
- Controlling and abusive behaviour; or
- Economic abuse; or.
It is important for a party wanting to claim spousal maintenance to show to the court that such party has or will have a bona fide need for such maintenance.
Spousal maintenance may be granted for life or for a determined period.
The Court considers the following: –
- The means and prospective means of each party;
- Respective earning capacities of each party;
- Financial needs and obligations of each party;
- Age of each party;
- Duration of marriage;
- Standard of living prior to instituting divorce proceedings;
- Parties conduct in so dar as it may relate to the break-down of the marriage;
- Any other factors.