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What is an Antenptial contract?

An Antenuptial contract is an agreement entered into between two parties prior to their marriage and is often referred to as a “prenuptial”. 

Upon entering into the agreement, the parties agree to exclude the system of Community of Property from their marriage. There are two forms of Antenuptial contracts, those including Accrual and those excluding Accrual.

If you do not enter into a valid notarized Antenuptial contract prior to your marriage, you are automatically married in Community of Property. 

The Antenuptial contract may also include a variety of terms and conditions, usually relating to the division of assets in the event of death or divorce. 
During the marriage each spouse will retain his or her separate property and would have complete freedom to deal with that property as he or she chooses. 

This would not be the case if the parties were married without an Antenuptial contract, and as such, be married in Community of Property.

There is substantial protection in our law for spouses married according to an Antenuptial contract which protection is not afforded to people married in Community of Property. 

Benefits of an Antenuptial Contract

• If either party is declared insolvent, the other spouse is protected from the insolvent spouse’s creditors;

• An Antenuptial Contract can be drafted in such a way so as to cater for your unique and individual circumstance.

• The respective spouses will not be held liable for any debt that the other spouse might have incurred prior to the marriage;

• Spouses will not be held liable for any debt that the other spouse may incur during the marriage;

• Assets that, for sentimental or financial reasons, the spouses do not want to form part of a joint estate can remain separate;

• Spouses will not need to obtain each others consent when dealing with their own property.

• Antenuptial contracts remove the risk in regard to all the spouses combined assets, should one of the spouses undertake a business venture, allowing for the protection of assets from creditors;

• Each spouse is able to retain his or her individual financial identity.

Concluding an Antenuptial with Accrual is, by and large, the fairest of the matrimonial regimes.

How to conclude an Antenuptial Contract

A consultation should be arranged with the Notary (an attorney with the additional qualification of a Notary Public) prior to the marriage being solemnized. 

Once your instructions as to the contents of the Antenuptial have been taken, the Notary will draft the Antenuptial in accordance with those instructions and will then arrange for you and your spouse to attend at his/her office to sign the Antenuptial in his/her presence.

The original Antenuptial is sent to the Deeds Registry in your and is registered by the Deeds Registry. The Antenuptial must be registered in the Deeds Registry within 3 months of the date of the marriage. 

About the author

Andrea Goldman is a Partner at Goldman Schultz Attorneys. For more information contact info@gslaw.co.za or www.gslaw.co.za

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Where there's a will..

Somehow we let time get away from us and we get bogged down in the details of life without taking care of what may happen in the event of our death. 

Unfortunately this may mean that when you pass away, you may not have a will in place in terms of which your assets will be distributed.

What happens if you die without a will?

It is an extremely common misconception that if you pass away, your assets will be forfeited to the State upon your death; and while that is untrue, passing away without a valid Will prevents you from having your assets distributed as you see fit.It is only if no heir is found after a period of 30 years, that an estate is forfeited to the government. 

Intestate Succession

In the event of your death without a Will, your estate (your nett worth) will be distributed in accordance with the Intestate Succession Act 81 of 1987.

In short this means that your closest living relatives (in order of their blood relationship to you) will inherit your nett assets (once your debt has been settled).

Adopted children and children borne out of wedlock or as a result of an extra marital affair will still inherit a portion of the deceased’s estate and our law makes no distinction in regard to these categories of children.

In the event that a minor child (under the age of 18) inherits, their inheritance will be placed in the Guardians Fund, which is administered by the Master of the High Court and will be paid out upon the heir coming of age.

Benefits of a will

The most obvious benefit is ensuring that your assets are distributed according to your wishes

• The Will can provide for investment of monies until any minor beneficiaries are of a certain age (a testamentary trust) and can provide for the nomination of the person who will administer the trust and the releasing of funds prior to maturity for maintenance or educational purposes

• You will appoint an Executor in your Will, who is the person you entrust to deal with your assets after your death and ensure that your wishes are carried out in accordance with the Will

• Estates which are wound up in terms of a valid Will are generally dealt with more expeditiously than where there is no valid Will

• You are able to leave instructions for the disposal of your remains in order to alleviate the burden on your family for the making of such a decision

You may appoint a guardian in respect of your minor children

It is extremely important to keep your Will current to reflect your intentions in the event that you pass away unexpectedly. 

As such, we strongly encourage that you make an appointment with your attorney to revisit, update or draft your Will so that you may continue to protect your loved ones after you have passed away.

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Domestic violence and your rights

If domestic violence is your story...

…you are not alone! No doubt you will experience all manner of emotions in dealing with the abuse, whether it is physical, verbal or even emotional but it is important to remember that there are mechanisms in our law to protect you and your children.

Your rights as a victim of domestic abuse

The Domestic Violence Act (1998) protects women against a broad range of behaviours that constitute domestic violence; including physical, sexual, verbal, emotional and psychological abuse, stalking, intimidation, harassment, malicious damage to property, as well as other forms of controlling behaviour which may cause harm to the safety, health or well being of the victim.

An important protection afforded by the Act is that the definition of “domestic relationship” has been extended to almost any form of an intimate or personal relationship.

How to obtain a protection order against the abuser

Domestic Violence Courts are housed in the Magistrates Court within your Magisterial district.

If you are a victim of domestic violence, you are able to attend at the Magistrates Court and complete the relevant form, an Application for Protection Order (Form 2: J480).
Once completed, the Clerk of the Domestic Violence Court should issue the documents and open a case file. The Magistrate should then consider whether, you have made out a case of domestic violence and issue an Interim protection Order providing you with protection from the specific abuse to which you have been exposed.

A warrant of arrest could be authorised but suspended by the Magistrate which warrant may be used if the Respondent (person against whom you seek the Protection Order) violates the terms of the Order.

You are obliged to return to court on the return date, which date is given to you by the Clerk of the Court.

Making the protection order final

The Respondent is served with a copy of the Application papers and Interim Protection Order. Should the Respondent wish to oppose the granting of a Final Protection Order, they must place an affidavit before court advising why the Order should not be made final, to which you may reply by way of affidavit.

If the Application remains opposed, and in the event that there are disputes of fact on the affidavits, it will proceed to trial. The Magistrate will ultimately make a decision as to whether the Final Order should be granted.

While the Interim Protection Order is in place, and once it is made final, should the Respondent breach the terms of the Order, you have a right to call the police who are obliged to intervene.

If the police believe that you may suffer imminent harm, they are obliged to take the Respondent into custody and you may lay charges against the Respondent for the abuse.

In the event that the Domestic Violence Application becomes complex or difficult, we recommend that you seek legal assistance from an attorney who specialize in matters of this nature.

About the author

Andrea Goldman is a Partner at Goldman Schultz Attorneys. For more information contact info@gslaw.co.za or www.gslaw.co.za

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Sexual harassment and the law

Sexual harassment is more common than people realise and is an assault on one's physical, emotional and psychological integrity.

The difficulty with sexual harassment is that there is no magic formula to determine what conduct constitutes sexual harassment. Furthermore, is it important to know how the person being harassed feels about the harassment.

It is commonly, though incorrectly, believed that only men are the perpetrators of sexual harassment in the work place, but this is often not the case.

What the law provides

Victims of sexual harassment in the work place are protected by law. Both our Employment Equity Act and our Labour Relations Act provide protection to victims of this type of insidious harassment as well as creating guidelines for employers on what steps to take should a matter of this nature arise within their organization.

The Code of Good Practice on the Handling of Sexual Harassment cases defines sexual harassment as unwanted conduct of a sexual nature distinguishing it from behaviour that is welcome and mutual.

Sexual attention becomes sexual harassment if:

a.    The behaviour is persisted in, although a single incident of harassment can constitute sexual harassment;
b.    The recipient has made it clear that the behaviour is considered offensive; and/or
c.    The perpetrator should have known that the behaviour is regarded as unacceptable.

The conduct can be physical, verbal or non verbal (such as leaving pornographic material in plain view) and forms of quid pro quo (in which a co-worker or superior attempts to influence the victim to exchange sexual favours for some benefit to the victim).

What to do if you are a victim of sexual harrassment

The law provides that your employer is required to deal effectively with a complaint of sexual harassment, which would include protecting you, the victim, and disciplining the perpetrator.

Employers are under a positive duty to develop policies to be implemented in the workplace with procedures to deal with instances of sexual harassment.

Recent case law has set out that failing to adequately protect employees against this type of abuse or failing to take adequate measures, should an incident of sexual harassment have been reported, can lead to the employer being found liable and having to compensate the victim.

As such, employers are no longer able to turn a blind eye to conduct amounting to sexual harassment in their organization and if they do, they are opening themselves up to enormous liability.

If you are being victimized by such behaviour, report it to your superior

If the person harassing you is your superior, advise their superior of their conduct. If the behaviour amounts to indecent assault or some other criminal offence, you are always entitled to approach the police.

Always remember to follow your company's procedures on sexual harassment and/ or grievance procedure if they are in place (which they ought to be) and remember to document all the facts relating to the harassment.

If you are able to do so, record the events in a diary giving evidence of a time-line of the harassment and keep all documentary proof relating to the harassment and the steps you have taken to protect yourself.

About the author

Andrea Goldman is a Partner at Goldman Schultz Attorneys. For more information contact info@gslaw.co.za or www.gslaw.co.za

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Vehicle collisions and the law

Current statistics indicate that approximately only one-third of South African drivers carry comprehensive insurance

This means that if you are in a collision with an individual, you or your insurance company will be looking to the other driver for compensation for damage to your vehicle. If that is the case, there are a number of things you can do to ensure your case is as strong as possible.

A few tips if you’re involved in a vehicle collision:

1. Always obtain AS MUCH information about the other driver as possible

If the other driver is employed and was driving in the course of his employment, obtain as much information about his/her employer as possible. This also applies to taxi drivers working for taxi operators – insist in obtaining their insurance information on the scene.

2. Obtain the details of any and all witnesses to the collision

Don’t only obtain a cellphone number – ask for their ID number and work details if possible. You are a lot more likely to be compensated, either through your insurers or in a law suit against the other driver, when you have this information available.

3. Take photographs

Most cellular phones have cameras so take pictures before the vehicles are moved (do this quickly so as not to obstruct traffic). Photograph any skid marks or any other relevant markings or signage relevant to the collision.

4. Report the collision at the nearest police station to the collision

If necessary insist that the other driver is present at the police station at the same time as you.

5. Keep your insurance broker or insurance company’s details on you

In the event of a collision, obtain instructions from your insurer about which towage company and/or panel beater may attend to your vehicle. Certain towage companies and panel beaters are affiliated to certain insurance companies.

6. Do not admit fault for the collision

Fault is a legal concept and it is for your insurers to deal with the issue of who is responsible for the collision.

7. If you are in a collision with a taxi and the driver advises you that the taxi is not insured, do not take this at face value 

There are several insurers who do insure taxis and it is a good idea to phone a few of the insurance companies who specialise in insuring taxis to ascertain if the vehicle with which you collided is insured. Your broker will be able to assist with the names of these insurance underwriters and make enquiries on your behalf.

8. Assist your insurer and the attorneys appointed by your insurer should they proceed against the third party

The third party is the person with whom you had the accident or their insurer. Your insurer will only be able to refund you the excess you paid once a recovery action against the third party has been successful.

The attorneys for your insurer will need you to assist with things such as giving a statement, providing any photographs you may have, deposing to affidavits, and ultimately testifying at trial should the matter proceed. This may be an inconvenience to you but you will be required under your insurance policy to assist.

Should you have any questions or concerns we suggest you speak to an attorney who deals with motor vehicle claims to assist you.

About the author

Andrea Goldman is a Partner at Goldman Schultz Attorneys. For more information contact info@gslaw.co.za or www.gslaw.co.za

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The “D” word

Whilst this is no doubt an unpleasant topic, divorce is a relevant and important issue to consider as it affects so many women.

The modified crude divorce rate in South Africa for 2003 was 520,4 per 100 000 married females (as quoted by Statistics South Africa).....

Divorces most commonly occur in the first five to nine years of marriage, which may explain the phenomenon of the so-called “seven-year-itch”

Marriages break up for many different reasons and therefore the concept of fault in respect to marriages no longer exists in South African law. This means that neither party is penalized for the breakdown of the marital relationship.

Should one of the parties in the marriage behave in a grossly unfair manner, there is an avenue for penalizing that party.  This, however, occurs rarely and is not readily applied by the courts readily.

What needs to be considered

It is so important that you and your spouse discuss certain issues if going your “separate ways” is a real possibility. Communication is, however, very difficult at such an emotional time and for this reason, it may be important to seek professional help, whether it be legal or psychological.

If you are able to discuss matters with your spouse, the following topics should be discussed:

1.    Possibility of reconciliation (perhaps again, with the relevant professional help);
2.    Division of assets according to the matrimonial regime of your marriage;
3.    Primary care of the children (previously known as “custody”);
4.    Contact with children (previously known as “access”);
5.    Maintenance for children and, if needs be, spousal maintenance;

Very often parties will not agree on all these issues and, more often than not, they will agree on none of these issues. However, discussing them will still give you an indication of your spouse’s intentions in respect to the divorce.

Do we need a lawyer?

The court system and the procedures of a divorce can be complex. Divorce is a legal concept and for this reason, protecting yourself through relying on the law is greatly encouraged. If you and your spouse are in agreement on the issues then a divorce can be done without an attorney.

However even when you are in agreement and have written out a settlement agreement encompassing your agreement, there are often unintended outcomes or issues that you may not have considered circumstances that might come into play later.

If you do not agree you will undoubtedly require legal assistance though the assistance you need will be very different to where the issues are acrimonious.

It is our suggestion that even if you attend to the divorce without an attorney that you consult an attorney to peruse your settlement agreement. This would make sure that the agreement complies with the law and that it deals with unforeseen issues that may occur after the divorce (for instance: which spouse has the minor children for Christmas and whether medical expenses not covered by medical aid will be shared by the parties).

The finer details of how a divorce proceeds and advice regarding the nitty-gritty issues which occur during the conduct of a divorce will be dealt with in later articles.

About the author

Andrea Goldman is a Partner at Goldman Schultz Attorneys. For more information contact info@gslaw.co.za or www.gslaw.co.za

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The “D” word Part 2: Consulting your attorney

Once you and your spouse are certain that you do not wish to remain married to each other it is important to appreciate the process upon which you are about to embark to bring your marital relationship to an amicable end.

Divorce is not pleasant and is invariably traumatic and emotionally draining

Being prepared for the anticipated outcomes is important in order that you can protect yourself and your children during this very hard time.

Tips for seeing an attorney

Attorneys will bill you on a time basis. In this way, the best way to curb legal expenses is to limit the amount of time spent with your attorney (in consultation or telephonically) to that which is necessary.

At the initial consultation you should take the following information to the attorney
in order that they can properly advise you of your particular legal situation:

A copy of your Marriage Certificate, full names and ID numbers of yourself, your spouse and any minor children of the marriage, information regarding any assets (houses, vehicles) and liabilities (mortgage bonds, vehicle finance) and details of retirement pension policies and other insurance policies.

Having an idea of the financial position of your spouse is also of extreme importance.

Have a good idea of what you would like to achieve in the divorce process

Do not be unrealistic. Taking your spouse “to the cleaners” is very unlikely to occur and will, in all honesty, cost you more than you will ultimately achieve.

Your attorney is not your therapist and is a lot more expensive than a psychologist

Whilst divorce leaves you vulnerable and your attorney should be sympathetic, it is up to you to obtain the emotional support you need from the proper professionals.

Like all professionals, you must be comfortable with your attorney

Divorce, by its very nature, requires that your attorney know intimate details of you and your life; from the reasons for the breakdown of the marriage, to the salary you earn.

If you are not comfortable with your attorney, you are entitled to withdraw their mandate to act and instruct someone else, once your initial attorney has been paid in full.

You should discuss with your attorney what they will charge you as their hourly rate

It is however very difficult for an attorney to provide you with a “quote” for the divorce as a whole. One divorce is very different from the next and it is almost impossible to gauge the length of time the matter will take and the degree of complexity that may be involved.

Rather ask your attorney to keep you up to date with the costs that are being incurred.

You will generally be asked to place funds in the attorneys trust banking account. This money will be a deposit for fees and disbursements.

About the author

Andrea Goldman is a Partner at Goldman Schultz Attorneys. For more information contact info@gslaw.co.za or www.gslaw.co.za

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Divorce Part 3: The Process

The prospect of a pending divorce is an extremely emotional one, even in the simplest of cases. The process of litigating a divorce can, however, be a cold and unfriendly prospect.....

There are two main types of divorces, those that are undefended and those that are defended.

Undefended divorces

The process of the divorce, even in the event that it is undefended commences in a similar fashion to that of a defended matter.

A Summons must be issued and served on your spouse. A summons commences the action for divorce and sets out the basis for the divorce as well as what you would like to claim from your spouse.

Once it has been served, your spouse may enter an Appearance to Defend which will simply engage them in the action for divorce.

Should the matter be settled, a settlement agreement will be drafted dealing with the proprietary and ancillary consequences of the marriage.

The agreement must be signed by both parties, and in the event of their being minor children, the settlement agreement must be forwarded to the Family Advocates Office for endorsement.

Should the Family Advocate have any queries relating to the care or contact of a minor child, an interview with the parties and children will be arranged.

Once the Family Advocate has endorsed the agreement, the defense to the action is withdrawn and the unopposed divorce will be set down.

At the hearing of the divorce, only the Plaintiff (the party initiating the divorce) need be present and will be asked a few simple questions whilst in the witness box in order to substantiate the divorce action.

An Advocate will be briefed to take the Plaintiff through their evidence in court.

Defended divorces

The Divorce Action is commenced in the same way as the undefended divorce action discussed above. Your spouse may oppose the divorce action by entering an Appearance to Defend. Thereafter, your spouse, the Defendant must respond to the Summons by way of a Plea.

In the event that your spouse seeks very different relief from you, a Counterclaim will be filed along with the Plea. You will then file a Plea answering the Counterclaim.

Once these pleadings have all been exchanged, the matter is set down for trial.

You must always remember that the litigation process is a fairly lengthy one and delays are often caused by the court system which can be much overburdened. As such, should the matter be defended, it may be many months before you are divorced.

The only two (2) issues which are run to trial are primary care of any minor children and the division of marital assets

As the matter will be run out of the High Court, it will be necessary to brief an Advocate. Thereafter the matter will proceed to trial.

It is never too late to settle a divorce and all attempts should be made to bring the divorce to an amicable end

The emotional, mental and financial cost often far outweighs any benefit that might be achieved through an acrimonious divorce.

About the author

Andrea Goldman is a Partner at Goldman Schultz Attorneys. For more information contact info@gslaw.co.za or www.gslaw.co.za

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Divorce Part 4: Rule 43

What happens when a divorce is taking a long time to finalize? Who pays for the children’s necessities in the meantime? How much contact with the children is allowed and how is it structured?

These are often questions - from clients who are divorcing - that attorneys face.

The law does provide a mechanism that can be used to assist parties during a divorce to provide for the interim period before the divorce is finalized. This mechanism is referred to as a Rule 43 Application.

Rule 43: What does it deal with?

Rule 43 deals with many of the issues that will ultimately be dealt with in the final divorce action. It is an interim measure to give certainty to the parties before the divorce is final. Bear in mind, some extremely acrimonious divorces can take years to finalise and parties need to be clear about their rights and obligations in the intervening period.

Rule 43 covers interim primary care of the minor children, and contact by the non-primary carer to the minor children. Furthermore it can deal with maintenance for minor children and if necessary, for a spouse. It can be used to enforce payment of for instance, the bond of the matrimonial home and vehicles, school fees and medical aid premiums.

What is the procedure?

The person (known as the Applicant) seeking the interim Order will serve and file with the Court, an affidavit (referred to as a Founding Affidavit) in which the person seeking relief will set out the facts relating to the divorce and why they are of the opinion that they are entitled to the relief sought.

The Affidavit and relevant notice will be served on the Respondent (the person against whom the relief is sought), to which the respondent may respond by affidavit. Thereafter the matter is set down for argument and an Order by the Court will be granted.

An Advocate will generally be briefed to attend to argue the Rule 43 Application

It does happen that the issues to be argued in the Rule 43 can be settled outside of the Court and it can happen that the whole divorce action is settled at the same time. It is, accordingly, very important that you make yourself available at the hearing in order that you can give your attorney instructions, should settlement negotiations transpire.

What if things change?

A Rule 43 Court Order is not cast in stone. It is contemplated that circumstances do change and as such, should a serious change in either of the spouses' circumstances change, the party with the material change to their circumstance can approach the Court for an amended Order to reflect their changed circumstance.

You should discuss the full parameters of the Rule 43 procedure with your attorney so that you understand fully the benefits and potential pitfalls involved in Rule 43 applications.

About the author

Andrea Goldman is a Partner at Goldman Schultz Attorneys. For more information contact info@gslaw.co.za or www.gslaw.co.za

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When your tenant won't pay

Having an investment property can often be a lucrative way to grow your asset base but it is often not without its pitfalls. Here's legal advice for when your tenant won't pay the rent:

How to protect yourself and your property

Without a doubt – put the lease agreement in writing! You can either instruct an attorney or, if the terms are simple, you can purchase a pro-forma agreement from a stationer.

Diarise the date when the lease expires and diarise on your calendar to contact the tenant at least two months prior to expiration. This affords you time to ascertain from the tenant as to whether they wish to renew the lease or vacate the property.

In the event that the tenant wishes to remain in the property, draft and sign an addendum to the lease agreement providing for the increase in rental and any terms different to those in the original lease agreement.

Correspondence between you and your tenant, invoices for work to the premises, proof of payment of rental and the original lease should be filed together in case of any problems arising.

The law regarding residential rentals

South African law provides that one is not able to evict someone in occupation of their property without due process. This applies whether or not the occupier is in lawful occupation.

The Prevention of Illegal Evictions Act requires that a court order is required in order to serve eviction papers on the occupier of the property. Bringing an application of this nature can be complex and we suggest that you instruct an attorney practicing in residential evictions to assist you.

What happens if the tenant opposes the eviction?

In our law, both parties must be afforded an opportunity to be heard before a court of law. In the event that the tenant opposes the eviction, the eviction will have to be argued on the opposed roll, which can be a lengthy and often a relatively expensive process.

Why can't I just change the locks?

Our law does not allow for the principle of ‘self help’. Simply changing the locks may seem like a good idea, except it is completely illegal. Doing such is referred to as a spoliation, which will entitle the tenant to approach the court and with a fair amount of ease, obtain a court order forcing you to place the tenant back in occupation of the property.

The lawfulness of their occupation is not relevant to the enquiry in a spoliation application!

What if they owe me arrear rental?

A summons must be issued and served, in which the sheriff is able to attach moveable items in the property to give security to your rental claim. This is a double edged sword as the tenant may then not vacate the property.

It is best to ensure that you thoroughly screen your prospective tenants by contacting previous rental references, confirming employment details, retain a copy of the tenants identity document and instruct an attorney to conduct a credit search (with the tenant’s written consent) on the prospective tenant.

These suggestions are in no way a guarantee and should you encounter a nightmare tenant who is in breach of the agreement, or should you require assistance with lease or other issues, contact an attorney practicing in this area of law to assist you.

About the author

Andrea Goldman is a Partner at Goldman Schultz Attorneys. For more information contact info@gslaw.co.za or www.gslaw.co.za

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Your child maintenance questions answered

Maintenance is an area of family law which always seems to be problematic. It is a fairly common complaint by women that the fathers of their children do not pay, pay late or pay too little maintenance.

What the law says about maintenance

The law is clear – both parents of children are responsible for the maintenance of their children and failure to maintain a person’s biological child is a criminal offence for which they can be prosecuted.

What maintenance should be paid?

This question has no cut and dried answer. The position is that the children’s needs must be met by the parents in proportion to their earning capacities. This means that it not necessarily a 50/50% split between the parents.

The starting point is the needs of the child

The amount that is needed to keep the child sheltered, clothed, and fed, as well as costs associated with electricity, water, travel costs, entertainment and additional expenses, are all relevant to the enquiry.

Thereafter the respective earning capacities of the parents will be considered and a ratio of their respective amounts determined in light of the needs of the child.

What about school and medical expenses?

These expenses must be considered separately from maintenance and each other. One should view maintenance as a three-pronged approach, in which contributions in respect to maintenance, school and medical expenses must be met by the parties respective to their earnings. As such, it is NOT sufficient for a parent to argue that as school expenses are paid, their maintenance obligations have been discharged.

Can the maintenance amount be varied?

Yes, however this provision cuts both ways. If the amount of maintenance is no longer sufficient, you may apply to your local magistrate’s court for an increase. If you are paying maintenance and can no longer legitimately afford to pay the amount as stipulated by the court, you can apply for a decrease in the magistrate’s court where the party receiving the maintenance lives.

The court will only amend the maintenance amount if ‘sufficient reason’ is shown. It can happen that a party approaches the court for a decrease, and the court, having such discretion, orders an increase in the maintenance payable and visa versa.

As such, ensure that your application is well founded.

When does the obligation to pay maintenance end?

It is untrue that the obligation to pay maintenance ends when the child becomes a major at 18. The obligation only ceases when the child becomes self-supporting. The obligation to support one's children does not even end in death – where a parent has passed away, the surviving parent is entitled to claim maintenance from the deceased parent's estate.

Should you have any queries relating to this area of law, it is suggested that you contact an attorney practicing in family law to assist you.

About the author

Andrea Goldman is a Partner at Goldman Schultz Attorneys. For more information contact info@gslaw.co.za or www.gslaw.co.za

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Maintenance Matters Part 2: Maintenance orders

Whilst the payment of maintenance is a legal obligation, it is often necessary to force the natural parent to pay maintenance by way of a maintenance order.

Where do I get a maintenance order?

You are able to obtain a maintenance order in either High Court or Maintenance Court (which is situated in the Magistrates Court in your district).

It is expedient and practical to include the amount of maintenance contributions in the Divorce Decree at High Court (assuming you were married to the other parent).

If you have not included the maintenance in the High Court Order, or should you not have been married to the other parent, it is advisable that you approach the Maintenance Court for a maintenance order.

How do I apply for a maintenance order?

The first step is to attend at the Court and fill in an Application for Maintenance Order form. You will be required by the Clerk of the Court to produce certain documentation so remember to take the following documents with you:

1.    Your ID book
2.    Your child/ren's birth certificate/s
3.    Proof of your residential address

It is our suggestion that you take it home and complete it carefully and when you have time to properly consider your financial position (whilst using your bank statement to make sure it is correct!)

The form will require that you set out what you require as a maintenance contribution from the other parent. In addition it will require that you insert the relevant figures of your income and average monthly expenses, in respect to yourself and your children.

This is represented in the example below:

Rental: R4 000   
No. of children: 3
Your contribution: R1 000   
Child/rens, contribution: R3 000
Total: R4 000 per month   

Once you have completed and returned the forms to the Clerk of the Maintenance Court you will be given a date when both you and the other parent have to appear at the Court.

On that day you will attend at an informal hearing with a Maintenance Officer and will discuss the matter with reference to your respective earnings and the needs of the child or children involved.

Maintenance trials

Should you be unable to reach agreement on the provisions of the maintenance that should be paid, the matter will be adjourned for a formal enquiry (also referred to as a maintenance trial).

At trial, evidence must be led as to the needs of the child and the financial position of each party. In order for such evidence to be led, documentation such as bank statements, IRP5s, proof of income, and vouchers for monthly expenditure must be provided to the Court and to the other party.

Likewise they must provide copies of the documentation in respect to their financial position.

Once all the evidence has been led, the Magistrate will make an order as to the terms of the maintenance that must be paid.

Often maintenance issues, at this level and especially when participating in a trial, are complicated and can present a proverbial minefield of pitfalls. For this reason, we do suggest that you consult with an attorney when embarking on an Application for a Maintenance Order.

About the author

Andrea Goldman is a Partner at Goldman Schultz Attorneys. For more information contact info@gslaw.co.za or www.gslaw.co.za

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Maintenance Part 3: He refuses to pay

If you have a maintenance order against a person to who refuses to pay maintenance, you do have certain avenues to explore to have maintenance paid.

What do I do when he refuses to pay maintenance?

You must attend at the maintenance officer at your district magistrate’s court and report the failure to pay to the maintenance officer.

The defaulting party may have a maintenance order enforced against him/her if the they fail to pay maintenance within ten days from the date that payment was due and may be ordered to pay interest on the arrear maintenance (that is maintenance that is due and owing but that has not been paid).

You can lay a criminal charge against the defaulting party in terms of a maintenance order and they will be criminally charged in terms of Section 31 of the Maintenance Act.

If convicted, they can be fined or sentenced up to twelve months’ imprisonment. In addition, you must apply for an order enforcing the maintenance order. This is to be done in the area in which the defaulting party resides.

The maintenance court can make one of the following orders in enforcing the maintenance order:

1) Execution against the defaulting party's property (this is a process whereby the maintenance defaulter’s property is sold and the proceeds of the sale are used to pay the maintenance);

2) Emoluments attachment order (often incorrectly referred to as a 'garnishee' - this is a process whereby the maintenance and outstanding amounts are paid directly by the employer from the maintenance defaulter’s salary or wages);

3) Attachment of any debt (this is a process whereby a third party who owes the maintenance defaulter money will be ordered to pay you, rather than the maintenance defaulter).

In addition, maintenance defaulter’s pensions, and other benefits may be used to settle a maintenance debt.

When the defaulting person is unemployed

Even if the defaulting person is unemployed, they are still legally obliged to pay maintenance, although the amount can be amended to accord with their means.

However, if the defaulting party proves that they have no means to pay maintenance and that it is not due to unwillingness to work or wrongdoing on their behalf; a court will not enforce a maintenance order.

Do not be disillusioned that this process is a quick or painless one

More often than not, many trips will be made to the maintenance court and many days wasted but in the end, if you are successful, your children will be the ones that benefit.

Most of these procedures are 'self help' and an attorney is not required. However, if you feel it would be in your interests to have an attorney represent you, we suggest that you contact one to discuss your individual situation.

About the author

Andrea Goldman is a Partner at Goldman Schultz Attorneys. For more information contact info@gslaw.co.za or www.gslaw.co.za

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Purchasing a home: your biggest investment

Purchasing a property

Purchasing a property has its own set of pitfalls to avoid; some of the most common are set out below:

1.    Before signing the Agreement of Purchase and Sale, consult your attorney regarding the implications of the Agreement and make sure that all the conditions pertaining to the sale are incorporated in the Agreement.

2.    Ensure you are aware of additional costs, such as transfer duty costs and conveyancing costs and be sure that you have the finances to cover all the expenses.

3.    If you have not yet obtained a mortgage bond to cover the purchase price, ensure that the Agreement is subject to the obtaining of the bond.

4.    In the event that you will pay a deposit for the purchase of the property, and once the agreement has been finalized, pay the deposit to the conveyancer (attorney) dealing with the transfer. They will hold the funds for you in an interest bearing account and will only pay the funds over on registration of the property to you.

5.    In the event that you wish to take occupation of the property prior to transfer, you will be required to pay occupational rental.

Selling a property

Assuming your property has been successfully marketed and you have a potential purchaser, these are common issues to consider:

1.    Ensure that you know which conveyancer you would like to use to complete the transfer of the property. As the seller, generally, you are entitled to elect the conveyancer. Whilst your estate agent may have a preferred conveyancer, you are fully entitled to choose your own.

2.    Once you sign the Agreement and all the suspensive conditions (e.g. finance/bond) have been fulfilled, the Agreement is binding. Consult with an attorney before you sign the agreement if you have any concerns whatsoever.

3.    Bear in mind that you are responsible for the estate agents commission and you must ascertain whether or not VAT is payable.

What if the agreement is breached?

As the Agreement is binding once the suspensive conditions have been fulfilled, should either party breach the Agreement, the other party will have recourse against the defaulting party and may (in most cases) elect whether to force compliance with the Agreement or cancel the Agreement and sue for damages by way of approaching the courts for relief.

Furthermore, depending on the breach and the party at fault, the estate agent may have a claim for commission from the defaulting party. As such, ensure you comply with the Agreement or you may face legal action from both the other party and the estate agent.

Special conditions

If the purchase of the property involves any special conditions, make sure they are written on the agreement. Purchase and Sale Agreements cannot be changed later unless the changes are written down and signed by both parties.

Ensure, therefore, that any items to be excluded from or included in the sale are written into the Agreement.

Should the purchase of the property be subject to the sale and transfer of another property, set this out fully in the Agreement.

The importance of seeking legal advise during the process should not be underestimated and is certainly encouraged before you enter into the Purchase and Sale Agreement.

About the author

Andrea Goldman is a Partner at Goldman Schultz Attorneys. For more information contact info@gslaw.co.za or www.gslaw.co.za

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