general family Law

Family Law is not only about finding a legal strategy, it is about the emotions that drive the parties, which often perpetuates the conflict during the divorce and family law matter proceedings.

We provide practical solutions to family law matters that are creative, dynamic and innovative and which assist clients to transition through the divorce and family law process with minimal stress and anxiety by providing the clients with the necessary emotional tools to get past their own self-imposed limitations by transforming obstacles into opportunities.

For direct answers to your specific personal questions, please contact us directly.

antenuptial contracts

An Antenuptial contract is one of the most important documents partners entering into a marriage will ever sign.

In South Africa, if you are married without an Antenuptial contract (“ANC”), you are automatically married in community of property. Many people feel that drawing up an ANC is preparing for divorce, however, this is not the case, as an ANC also protects you and your assets if you or your spouse die.

What does an ANC do?

If you have an ANC, you will be married out of community of property and including the accrual, unless the accrual system is specifically excluded. This means that each spouse retains his or her separate property and has complete freedom to deal with that property as he or she chooses. The accrual system is a form of sharing of the assets that are built up during the marriage. The underlying philosophy is that each party is entitled to take out the asset value that he or she brought into the marriage, and then they share what they have accumulated together during the marriage. Having an ANC in place ensures that you and your spouse are regarded as separate legal entities and there is no joint estate. This means that you are protected from your spouse’s creditors and vice versa. So, for example, if you are married in community of property, and one of you has a gambling problem and runs up huge debts, you and your spouse would be jointly responsible for paying back such debts. If, however, you are married in terms of an ANC, you will be protected against such conduct. An inheritance, a legacy or a donation which accrues to a spouse during the subsistence of the marriage, as well as any other asset which was acquired by virtue of the possession or former possession of such inheritance, legacy or donation, does not form part of the accrual of an estate, except in so far as the spouses may agree otherwise in their antenuptial contract or in so far as the testator or donor may stipulate otherwise

 

How to go about getting an ANC

Both you and your intended spouse should consult with the attorney who is drawing up the ANC, in order that both of you are fully aware of the consequences of the ANC. It is also important to consult with someone who is neutral and who can mediate the terms of your ANC. The ANC must be signed by both parties, in the presence of a Notary Public, prior to the marriage and must be registered in the Deeds Office within three months of the date of the marriage. If you failed to enter in an ANC prior to your marriage, or if you wish to alter the terms of your ANC, this is possible by way of application to the high court.

How can we help?

Whether you wish to enter into an ANC or amend your existing ANC, we can assist you to do so and explain the options available to you and procedures necessary to give effect thereto.

For direct answers to your specific personal questions, please contact us directly.

Variations of Matrimonal Regime

You and your spouse will need to bring a High Court application in terms of section 21(1) of the Matrimonial Property Act for you to be permitted to enter into a notarial contract setting out what the future matrimonial property regime shall be for your marriage.

Requirements in terms of legislation:

  1. An application to the High Court must be brought jointly by both spouses.
  2. There must be sound reasons given in the application for the proposed change to satisfy the Court that no other person will be prejudiced by the said change and that the rights of creditors will be preserved.
  3. A draft notarial contract (which the spouses intend to enter into and register to regulate their matrimonial property regime if the application is successful) must be annexed to the application.
  4. Notice of the application must be given to the Registrar of Deeds (required by section 97(1) of Deeds Registries Act).
  5. Notice of intention to bring the application must be published in Government Gazette, and in 2 local newspapers not less than 2 weeks before the date the application is to be heard, stating what steps any objector can take and where the application and draft notarial contract may be inspected.
  6. Notice must be given to all actual or contingent creditors for both parties by registered post not less than 2 weeks before the date the application is to be heard, with a list of those creditors included in the application, and a further affidavit attaching proof of the notice given.

Further requirements based on case law:

  1. The application should state whether or not either or both parties have ever been sequestrated and the circumstances of any such sequestration, and provide the case number of any rehabilitation application(s).
  2. The application should state whether or not there are any legal proceedings pending against either or both parties by any creditor seeking payment of any alleged debt which is due by either or both party.
  3. The draft notarial contract annexed to the application should contain a clause or provision for the preservation of the rights of the pre-existing creditors.
  4. The application must disclose where the parties are domiciled and, if not resident there when the application is made, where they are resident. Any recent change in domicile or residence should be disclosed.

What should I prepare or bring with me for my attorney?

  1. Original identity documents and/or copies of your identity documents.
  2. Schedule of the assets and liabilities owned by each of you individually or jointly, as the case may be.
  3. Latest documentary proof of the value of those assets and the outstanding amounts of those liabilities.
  4. Schedule of the contact details for the creditors for each of you individually or jointly, as the case may be.
  5. Proof of any credit agreements entered into and the details of how, and on whose behalf, the particular liability was incurred.
  6. Documentary proof and details in respect of any sequestration of either or both of you, and of any rehabilitation applications in connection with this.
  7. Documentary proof and details of any current pending legal proceedings against either or both of you by a creditor demanding payment of an alleged debt due.

For direct answers to your specific personal questions, please contact us directly.

universal partnerships

Today, about 60 percent of couples live together before a marriage. There is no common-law marriage in South African law and therefore the period of time that a couple spends living together does not translate into a default marriage. The principle of a universal partnership assists cohabitees by affording them a right to a share in the property acquired during the relationship.

What is a “universal partnership”?

A universal partnership is an express or tacit agreement between two people, including same sex couples, who choose to live together in a permanent relationship without entering into marriage. Our law does not give automatic rights to partners in a cohabitation relationship. If one of the parties dies without leaving a Will, the domestic partner is not legally entitled to inherit or to claim maintenance from the deceased’s estate. An aggrieved party would have to go to court to show that the parties were partners in a “universal partnership” and that the one party owes something to the other.

Requirements of a universal partnership

A universal partnership will exist if the following essentials are present:

(a) each of the partners must bring something into the partnership, whether it be money, labour or skill;
(b) the partnership should be carried on for the joint benefit of the parties;
(c) the object should be to make a profit;
(d) the contract should be a legitimate one.

 

Assets of a universal partnership

The assets of a universal partnership are those assets brought into the partnership at inception and those acquired during the existence of the partnership. A partner may not alienate or use partnership assets as personal security without the other partner’s prior consent and may not entirely exclude a partner from controlling the partnership property or assets. Partners cannot share in the pension assets of their partners on termination of the relationship, even those who are able to prove the existence of a universal partnership. The reason for this is that the Pension Fund Act makes reference to a “divorce” and a universal partnership is not a marriage and can therefore not be terminated by divorce.

How can we help?

We can assist cohabitees to draft a Universal Partnership Agreement dealing with the division of their property upon termination of the partnership, whether by the death of one of the parties or the termination of the relationship. It can also provide for the duty of support between the parties and the right to share in each other’s property during the relationship, or upon termination thereof. The agreement may be entered into at any point during the relationship, prior to the termination thereof. It is also advisable that a Will be drawn up in order to govern the succession of the parties.

If you have been cohabiting with your partner and the relationship has come to an end, we can advise you on the prospects of lodging a claim against your partner on the grounds of a universal partnership.

Cohabitation Agreements

Today, about 60 percent of couples live together before a marriage. Some people are of the opinion that if they live together they are as good as married, which is simply not the case. There is no common-law marriage in South African law and, therefore, the period of time that a couple spends living together does not translate into a default marriage. If you do not wish to be married, but choose to reside with your partner, it is advisable to enter into a cohabitation agreement in order to protect you both in the event of the termination of the relationship.

Unlike marriage, which is regulated by specific laws that protect the individuals in the relationship, cohabitation offers no such comfort. For example, when a cohabitant dies without a valid will, their partner has no right to inherit under the Interstate Succession Act. A cohabitant can also not rely on the provisions of the Maintenance of Surviving Spouses Act to secure maintenance on the death of a partner. Furthermore, there is no obligation on cohabitants to maintain each other and they have no enforceable right to claim maintenance.

The law as it stands is unsatisfactory, simply because it does not place cohabitants on the same footing as partners in a marriage or civil union. Fortunately, the South African law on cohabitation will soon be rectified by the draft Domestic Partnerships Bill that was published in January 2008. Until the Bill is adopted into legislation, however, the status of cohabitants in South Africa will remain significantly different from spouses in a marriage and partners in a civil union.

Legal protection of cohabitants

There is some legislation that places cohabitation and marriage on an equal footing:

  • Cohabitation is recognised under the Domestic Violence Act.
  • The Medical Schemes Act 131 of 1998 defines a dependant to include a ‘partner’.
  • In terms of the Income Tax Act and the Estate Duty Act, cohabitants are treated as spouses for the purposes of tax legislation, and the word ‘spouse’ is defined to include a permanent same-sex or heterosexual relationship.
  • Either partner in a cohabitation relationship may name the other as a beneficiary in a life insurance policy. The nomination will, however, have to be clear, because a clause in an insurance policy that confers benefits on members of the insured’s ‘family’ may cause problems. And if a policy, for instance, a car insurance policy, covers/excludes passengers who are members of the insured’s family, this provision does not operate to the benefit/detriment of the insured’s partner.
  • The law does not distinguish between married and unmarried parents in regard to the obligation to maintain children. Decisions regarding care and contact are based on what is in the best interests of the child. Children are protected if the couple is not married since both biological parents are responsible for the maintenance of their children. The father and mother are both still liable for maintenance if the couple splits up.  This will not apply to same-sex couples as both cannot share a biological link with the child.
  • A domestic partner may receive pension fund benefits as a nominee. A domestic partner may also receive pension benefits as a factual dependant if he/she qualifies as such under the definition of ‘dependant’ in the regulations or conditions of that particular fund. A domestic partner will, however, not be entitled to their partner’s pension interest on termination of their relationship.
  • Under the South African Compensation for Occupational Diseases Act, 1997, a surviving domestic partner may claim for compensation if their partner died as a result of injuries received during the course of work if at the time of the employee’s death they were living as ‘husband and wife’.

Cohabitation agreements

Life partners (regardless of their sex) are permitted to enter into a contract similar to an antenuptial contract that regulates their respective obligations during the subsistence of their union and the (patrimonial) consequences of the termination thereof. The contents and nature of a cohabitation agreement will depend on the needs of the parties. The parties may include any provision in the agreement that is not illegal, against the morals of society or contrary to public policy. Such an agreement will usually contain regulations regarding finances during the existence of the cohabitation relationship and deal with the division of property, goods and assets upon its termination. Parties may even include an express provision for the payment of maintenance upon termination. If one partner refuses to follow the agreement, the other partner can approach a Court for assistance. Cohabitants who fail to draw up a cohabitation agreement will have no legal protection, unless they can prove the existence of a universal partnership.

What happens when the relationship ends?

As no reciprocal duty of support exists between partners in a domestic partnership, there is no enforceable right to claim maintenance, either during or upon termination by death or otherwise of the relationship, unless maintenance is regulated in a cohabitation agreement. There is also no action for claiming damages in the event of the unlawful death of a partner.

Cohabitants cannot reclaim monies that they spent on maintaining their partner during the relationship, unless they can make out a case for unjust enrichment. Similarly, donations made between partners in a cohabitation relationship cannot be claimed back by the donor.

There is no law that allows for a person’s pension assets to be transferred in a cohabitation partnership. A cohabitation agreement will have no effect either, as it would not be enforceable against the pension fund. Even those who are able to prove the existence of a universal partnership cannot share in their partner’s pension assets on termination of the relationship, as is the case with people who have registered their unions in terms of the Marriage Act or the Civil Union Act. It still needs to be decided by our courts whether or not this amounts to discrimination on the basis of marital status, especially since cohabitants can be awarded these assets on the death of their partners. Cohabitants also cannot bind their partners to contracts with third parties for household goods.

In the absence of a cohabitation agreement or a proven universal partnership, private property acquired by the cohabitants prior to their relationship belongs to the partner who originally acquired it and no community of property can be established. It therefore follows that a cohabitant who is not the owner of the property has no special right to occupy the common home. Cohabitation per se does not give rise to automatic property rights, but the ordinary rules of the law of contract, property and unjustified enrichment might be invoked by cohabitants to enforce their rights.

Cohabitation and death

There is no right of intestate succession (when someone dies without a will) between domestic partners, no matter how long they have lived together. A partner is not automatically regarded as an heir or dependant. The rules of intestate succession, as set out in the Intestate Succession Act 1987, are clear. In the event of there being no valid will, the beneficiaries are, in the first instance, a spouse or descendants or both. In the event of there being no spouse or descendants, the estate devolves upon other more distant members of the bloodline.

 

If the surviving partner is not named in a will, he/she will be faced with the monstrous task of having to prove his/her specific contribution to the joint estate before entitlement will be forthcoming. Proving actual contribution is often extremely difficult, especially when a partner has died. Litigation is usually lengthy, costly and unwelcome, particularly at a time already fraught with emotional trauma. This problem is exacerbated if the deceased had not divorced a previous spouse. In law, the first spouse clearly has the leverage to proceed and claim the entire estate. There is no obstacle to making specific provision for a domestic partner in a will. A person is entitled to leave his/her estate to a partner even to the exclusion of his/her spouse.

How can we help?

We can assist cohabitees to draft a Cohabitation Agreement dealing with the division of their property upon termination of the relationship, whether by the death of one of the parties or the termination of the relationship. It can also provide for the duty of support between the parties, the right to share in each other’s property during the relationship or upon termination thereof and to inherit from each other in terms of the rules of intestate succession. The agreement may be entered into at any point during the relationship, prior to the termination thereof. It is also advisable that a Will be drawn up in order to govern the succession of the parties.

Same Sex Marriages and Civil Unions

South Africa was the first country in the world to safeguard sexual orientation as a human right in its Constitution, which forbids discrimination on the basis of sex, gender or sexual orientation. These equality rights formed the basis for a series of court decisions granting specific rights to couples in long-term same-sex relationships.

The current legal position

The Civil Union Act (Act 17 of 2006), which provides for opposite-sex and same-sex civil marriages, religious marriages and civil partnerships. A person may only be married under one of these laws at any given time.

Amendment

The Civil Union Amendment Act No. 8 of 2020 which provides for opposite-sex and same-sex civil marriages, religious marriages and civil partnerships. Section 6 of the Civil Union Act No. 17 of 2006 has been repealed by the Civil Union Amendments Act No. 8 of 2020. Section 6 of the Civil Union Act 17 of 2006, which previously allowed a marriage officer to inform the Home Affairs Minister of his or her objection to officiate same-sex unions on the grounds of conscience, religion or belief, now prohibits marriage officers or Magistrates from refusing to solemnise a civil union between same-sex couples. A person may only be married under one of these laws at any given time. 

Solemnisation

Marriages and civil partnerships must be solemnised by an authorised marriage officer. Government officials (primarily magistrates and Home Affairs civil servants) who are appointed as marriage officers under the Marriage Act are also able to solemnise marriages in terms of the Civil Union Act. Religious leaders may also be appointed as marriage officers under the Civil Union Act, but religious leaders appointed under the Marriage Act are not automatically able to solemnise marriages in terms of the Civil Union Act.

Amendment

Marriages and civil partnerships must be solemnised by an authorised marriage officer. Government officials (primarily magistrates and Home Affairs civil servants) who are appointed as marriage officers under the Marriage Act are also able to solemnise marriages in terms of the Civil Union Amendment Act No. 8 of 2020. The Home Affairs Minister must ensure that there is a marriage officer available to solemnise a civil union at every office. As part of the amended Bill, the Department of Home Affairs will be given a transitional period of 24 months within which to train those officials who had previously been granted an exception by the Minister. Whilst the transitional period is in effect, a marriage officer, other than those granted exemption, must be available to solemnise a civil union at every Department of Home Affairs office to ensure that no same-sex couple is turned away.

For direct answers to your specific personal questions, please contact us directly.

domestic violence

Violence against women is considered a universal problem. According to a study released in 1998 by the South African Medical Council, 50% of the 1 394 men interviewed admitted to physically abusing their female partners at their own homes. In a further study conducted in 2010 it was found that the majority of men and more than half the women surveyed held the belief that women should obey their husbands. Studies show that it is not uncommon for abuse to commence whilst girls are still adolescents and for women to tolerate the abuse they are enduring simply because it is common practice in South Africa.

Domestic violence is rarely reported in South Africa. The percentage of women who report experiencing domestic violence at least once in their lifetime is as high as 59 percent. In the 2002 study conducted by Jewkes et al more than 97% of the black African women interviewed admitted experiencing some form of physical violence. Alarmingly, of the 97% who admitted experiencing domestic violence, over 95% had experienced physical violence within the previous year.

Domestic violence defined

Section 1 of the Domestic Violence Act, 116 of 1998, defines domestic violence as:

physical abusesexual abuse; emotional, verbal and psychological abuse; economic abuseintimidationharassmentstalking; damage to property; entry into the complainant’s residence without consent, where the parties do not share the same residence; or any other controlling or abusive behaviour towards a complainant, where such conduct harms, or may cause imminent harm to, the safety, health or wellbeing of the complainant.

The Act goes on to further define each of these sub-categories of domestic violence.

Legal procedure

Under the Domestic Violence Act, anyone suffering from any form of domestic violence may apply to a specially designated Domestic Violence Court, situated at most Magistrate’s Courts throughout South Africa, for an interim protection order, so as to protect themselves from ongoing or further abuse. Furthermore, anyone may apply for an interim protection order on behalf of a minor child who is the victim of domestic violence.

An interim protection order is granted ex parte, in other words, in the absence of the alleged abuser. The Court is empowered to grant immediate relief, including prohibiting the respondent from:

  • committing any acts of domestic violence or enlisting the assistance of third parties to do so;
  • entering the complainant’s residence, the shared residence, or certain parts thereof;
  • entering the complainant’s place of work or school;
  • preventing the complainant from entering the shared residence or remaining there.

The Court may further order that:

  • any arm or dangerous weapon in the possession of the respondent may be seized;
  • the SAPS accompany the complainant to a specified place to assist in the collection of personal property;
  • the respondent make payment in respect of rent or mortgage bonds;
  • the respondent pay emergency monetary relief to the complainant;
  • the respondent not be allowed contact with a child or that contact only be granted under specific conditions.

The interim protection order must then be served on the respondent by the SAPS and calls upon the respondent to appear in Court on a specified day and time in order to show cause why the order should not be made final. The complainant is required to accompany the SAPS and point out the respondent.

On the return date, the complainant and the respondent are required to appear at court, and the respondent is required to make out a case why the interim order should not be made final. This is done by way of an answering affidavit. The magistrate will attempt to settle the matter between the parties, but where this is not possible, the complainant is afforded the opportunity to file a replying affidavit to the respondent’s answering affidavit, and once all the affidavits and relevant evidence has been filed, the matter is set down for argument. Generally, these matters are argued on the papers before the court, however, where the matter is complex and the court deems it necessary, oral evidence may be heard.

Q & A:

Q: What is considered as domestic violence?

A: The Domestic Violence Act, 1998 defines domestic violence as: Physical abuse, e=sexual abuse, emotional abuse, verbal and psychological abuse, economic abuse, intimidation, harassment, stalking, damage to property, entry into the complainant’s residence without consent, or any other controlling or abusive behaviour towards a complainant where such conduct harms or may cause imminent harm to, the safety, health or wellbeing of the complainant.

 

Q: What is economic abuse?

A: This is the unreasonable deprivation of financial resources to which a victim of domestic violence is entitled to under law or requires out of necessity. This could include household necessities, rent money or mortgage bond repayments.

In terms of the Domestic Violence Act economic abuse is the unreasonable deprivation of financial resources to which a victim of domestic violence is entitled to under law or requires out of necessity. This could include household necessities, rent money or mortgage bond repayments.

How can we help?

We understand that, as a victim of domestic violence, you may not have the emotional wherewithal to take the necessary steps to protect yourself and/or your children. We get that “leaving” is not a simple process, often complicated by financial concerns. You can trust us to be there for you throughout the process. We will offer you all the support you need, including referring you to a safe house if necessary and to psychologists or social workers who are specialists in the field. Ensuring your safety, maintaining your dignity and empowering you to take control of your life all form part of the holistic approach we take to our matters.

For direct answers to your specific personal questions, please contact us directly.

Harassment Applications and Orders

Parliament has enacted the Protection from Harassment Act, 2011 (Act 17 of 2011), to protect persons against harassment. The Act aims to provide a remedy in the form of a protection order which would prohibit a person from harassing another person. If the alleged harasser breaches a protection order he or she commits an offence which is punishable with a fine or a period of imprisonment.

Definition of harassment

Section 1 of the Act defines harassment as directly or indirectly engaging in conduct that the respondent knows or ought to know-

(a) causes harm or inspires the reasonable belief that harm may be caused to the complainant or a related person by unreasonably-

(i) following, watching, pursuing or accosting of the complainant or a related person, or loitering outside of or near the building or place where the complainant or a related person resides, works, carries on business, studies or happens to be;

(ii) engaging in verbal, electronic or any other communication aimed at the complainant or a related person, by any means, whether or not conversation ensues; or

(iii)  sending, delivering or causing the delivery of letters, telegrams, packages, facsimiles, electronic mail or other objects to the complainant or a related person or leaving them where they will be found by, given to or brought to the attention of, the complainant or a related person; or

(b) amounts to sexual harassment of the complainant or a related person

The procedure

Harassment matters are handled by the domestic violence section of the magistrate’s court. The complainant is required to complete a dedicated form, which takes the form of an affidavit under oath and in which the complainant is required to set out the details of the alleged respondent/harasser and the alleged acts of harassment suffered by the complainant. If the court is satisfied that the complainant is in need of protection, an interim protection order will be granted. This must then be served on the Respondent by members of the South African Police Services. The complainant is required to accompany the SAPS and point out the respondent.

A return date will be set down in the interim protection order. On this date, the complainant and the respondent are required to appear at court, and the respondent is required to make out a case why the interim order should not be made final. This is done by way of affidavit.

In most harassment matters the magistrate will attempt to settle the matter between the parties, but where this is not possible, the complainant is afforded the opportunity to file a replying affidavit to the respondent’s answering affidavit, and once all the affidavits and relevant evidence has been filed, the matter is set down for argument. Generally, these matters are argued on the papers before the court, however, where the matter is complex and the court deems it necessary, oral evidence may be heard.

How can we help

Our trained professionals have extensive experience in harassment matters. Whether you are the complainant or the respondent it is vital that your case is adequately put before the court in a coherent manner and that all relevant evidence and information is attached to your affidavit(s). If you are the complainant and your evidence does not satisfy the court, you may not be successful in obtaining an interim order, or you may have your interim order set aside on the return date. Likewise, if you are the respondent and you do not properly deal with the allegations made against you, the interim order may be made final.

We can assist you to complete the necessary forms, obtain the necessary information and draft any affidavits. If your matter proceeds to hearing, we have the necessary experience and expertise to properly argue the matter. Wherever possible, we do strive to resolve harassment matters by way of settlement, negotiation and/or alternate dispute resolution, such as mediation.

For direct answers to your specific personal questions, please contact us directly.

surrogacy applications

Surrogacy arises when a woman (surrogate) carries a child on behalf of a couple (commissioning parents) with the intention of the couple becoming the child’s  parents when the child is born.

Surrogacy applications are legal in South Africa however they are legally complex and it is crucial to understand the implications and the required legal steps to take in order to enforce a surrogacy agreement.

We have successfully obtained surrogacy orders on behalf of our clients and have guided them through the process with our expertise in this area of law.

For direct answers to your specific personal questions, please contact us directly.

adoption law in south africa

Adoption is a legal process in which the Parental Responsibility and rights for a child is transferred from their birth parents or other person with Parental Responsibility and rights to the adopting parents. An adopted child will no longer have any legal ties with their original parents. When an adoption order is made in respect of a child, the child becomes a full member of their new family, usually takes the family surname, and assumes the same rights and privileges as if the child had been born to the adoptive family.

Adoptions can be complex so knowing how to navigate through the process is essential.

Contact our offices so we can explain to you everything you need to know in order to ensure that all your legal requirements are met and that your adoption process is successful.

wills

Why do I need a Will?

There are two ways in which people may inherit from a deceased estate: intestate succession and testate succession.

Intestate succession applies when the deceased has not executed a Will. In such cases, there is a specific progression automatically applied to determine who may inherit (e.g. any surviving spouse or spouses, surviving children, parents, etc.). If the deceased leaves no living heirs, either descendent or ascendant, the entire deceased estate goes to the State.

Testate succession applies when the deceased has executed a Will in accordance with all of the formalities of the Wills Act. It is recommended that you leave complete a Will, as this way you have freedom to decide exactly what shall happen to your estate upon your death, provided this is within certain limitations in terms of legislation, case law and the boni mores of society.

What is the effect of Divorce on Wills?

Section 2B of the Wills Act provides that if you should die within three months of your divorce, your estate it is treated as if your former spouse died before you, and will, accordingly, not have any claim again your estate.

If you get divorced and do not wish your former spouse to inherit in terms of your Will, you have a three-month grace period after the divorce to change your Will in order to exclude your ex-spouse, if you have not already done so. It is recommended that you change your Will once divorce proceedings start or are anticipated.

Note: If you should die before the divorce proceedings are concluded, your spouse will still have a claim against the deceased estate in terms of the matrimonial property regime of your marriage, regardless of whether they are a beneficiary in terms of your Will.

If, however, you do intend that your former spouse shall still inherit from you even after the divorce then you must execute a new Will immediately after the divorce, as they shall receive nothing should you die within three months from the date of divorce.

What should I consider when executing a Will?

  1. The establishment of a testamentary trust for the preservation of the inheritance of any minor or major heirs until they reach a suitable age, which we usually recommend to be 25 years.
  2. Who shall become the guardians of any minor children, particularly if the other parent should die before you or at the same time as you.
  3. Alternative executors, trustees, guardians and/or heirs or beneficiaries which you would prefer in the event of the original intended recipients being unwilling or unable to receive that benefit.
  4. Whether you wish to be cremated or not.
  5. Whether or not you wish to donate any of your organs.
  6. Whether to include a right for a person to enjoy the use and/or advantages of any particular asset (i.e. a usufruct) whilst ownership of such asset vests in another person (e.g. being allowed to continue to reside in a house).
  7. Whether to direct that any particular property must be sold by the executor and the proceeds given to the nominated heirs or beneficiaries.

NB! Always check the following before signing your Will:

  1. Make sure there is a clause, which should appear at the beginning of the document, revoking all other Wills previously done by you.
  2. If you nominate any friends or family to be an executor or trustee in terms of your Will, it is recommended that there is a clause which states that they shall not be required to furnish the Master of the High Court with security for the proper performance of their duties.
  3. Signature of the Will on the last page must be witnessed by two people, who must both be present at the same time that the Will is signed, and all other pages must be initialed in the bottom right hand corner by you and those witnesses at the same time.
  4. The witnesses must be at least 16 years or older.
  5. The witnesses cannot be anyone who receives any benefit at any time whatsoever from the Will, which includes being an executor, trustee or guardian.
  6. The document should include the full names, identity numbers and contact details of the witnesses. This is to ensure that, in the event that there is a dispute regarding your Will, they can be located to assist in settling the dispute.
  7. If you are going to keep the original Will, you must ensure that it is kept in a safe and secure place which would be free of hazards such as fire or flooding and advise your nominated executor where this may be found.

What should I prepare or bring with me for my Attorney?

  1. Original identity document and/or copies of your identity document.
  2. The details of the full names, identity numbers, contact details and addresses for any people, organizations, or charities etc. named in the Will so that they are properly identified and can be easily located upon your death.
  3. The full details and proper descriptions of your current assets and liabilities, including where any such assets may be located, and the details of your creditors.
 

For direct answers to your specific personal questions, please contact us directly.

 Beneficial links