Tag Archives: divorce

AN EX-SPOUSE REFUSING TO PAY MAINTENANCE?

If a couple has gotten divorced and they have a child, then it’s the responsibility of both parents to support the child. The duty to pay maintenance cannot be avoided, regardless of either parents’ situation. If one parent refuses to pay maintenance, then the other parent can go to a court and make a claim. Being a single parent doesn’t mean being the only one to contribute to maintenance.

What should I do about it?

To deal with a spouse who refuses to pay maintenance you would first need to inform the maintenance officer. The maintenance officer can apply to the court for:

  1. A warrant of execution;
  2. An attachment order against the defaulter’s salary;
  3. An order to attach any debts; and
  4. A criminal prosecution.

Does the non-paying parent have a defence?

The only defence that a parent could have for not paying maintenance is having a lack of income. However, if the parent is unwilling to work, such as laziness, then this will not count as a defence. Failure to pay maintenance is taken very serious, guilty parents won’t get much sympathy from the court or others. If the parent is capable of working, then they will be expected to pay maintenance.

But I can’t find my ex-spouse?

Non-paying parents may think that they’re being clever by changing their address and not notifying the court. This is considered a criminal offence, and will result in punishment. Fortunately, it’s not the responsibility of the single parent to find anyone. A maintenance investigator will track down and find a non-paying parent.

How to claim maintenance

If you want someone to pay maintenance or believe that they are not paying the proper amount, then you can follow these steps at your local magistrate’s court. Remember to go the court in the district where you live.

  1. Go to the court and complete the form “Application for a maintenance order (J101)”.
  2. Also submit proof of your monthly income and expenses.
  3. A date will be set on which you and the respondent (the person whom you wish to pay maintenance) must go to the court.
  4. A maintenance officer and an investigator will investigate your claim and look into your circumstances.
  5. The court will serve a summons on the respondent.
  6. The respondent then has to either agree to pay the maintenance, or challenge the matter in court.

If found liable to pay maintenance

If the court finds someone liable for paying maintenance, it will make an order for the amount of maintenance to be paid. The court will also determine when and how the payments must be made. There are several ways the payments could be made. The court can order that the maintenance be paid at the local magistrate’s office or that the amount to be paid into the bank account chosen by the person claiming. The payments could also just be made directing to them. According to the new Maintenance Act (1998), an employer can deduct payments from an employee’s salary, if they’re liable for paying maintenance.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).

CAN I AMEND MY WILL?

Having a will is a final statement of how you want your assets to be managed after your death. However, sometimes you may want to change it. You may have had a child, for example, and what to add him/her into your will. You may have also acquired more assets and would like to reconsider how they get divided among your possible heirs.

What is a codicil?

When you want to add something to your will or make a minor change, then you can make use of a codicil. A codicil is a schedule or annexure to an existing will, which is made to supplement or to amend an existing will. A codicil must comply with the same requirements for a valid will. A codicil need not be signed by the same witnesses who signed the original will.

What if I want to amend my will?

  1. Amendments to a will can only be made while executing a will or after the date of execution of the will.
  1. Amendments to a will must comply with the same requirements for a valid will and if you cannot write, with the same requirements listed under that heading.
  1. When amending a will, the same witnesses who signed the original will need not sign it. 

Must I amend my will after divorce?

A bequest to your divorced spouse in your will, which was made prior to your divorce, will not necessarily fall away after divorce.

  1. The Wills Act stipulates that, except where you expressly provide otherwise, a bequest to your divorced spouse will be deemed revoked if you die within three months of the divorce.
  1. This provision is to allow a divorced person a period of three months to amend his/her will, after the trauma of a divorce.
  1. Should you however fail to amend your will within three months after your divorce, the deemed revocation rule will fall away, and your divorced spouse will benefit as indicated in the will.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE).

References:

http://www.justice.gov.za/master/m_deseased/deceased_wills.html

UNOPPOSED AND OPPOSED DIVORCE: WHAT’S THE DIFFERENCE?

My spouse said that he/she won’t ‘give me a divorce’. What can I do? Your spouse can oppose the divorce, but it is the Court that grants a divorce, not your spouse. If you convince the court that the marital relationship has irretrievably broken down, the court can grant a decree of divorce even if your spouse does not want to get divorced.

There is a process, called a ‘rule 58 or rule 43’ application, whereby you can ask the court to give an order regarding the care of and access to the children and maintenance pending the finalisation of the divorce. You can even ask for a contribution to your legal costs.

How much does it cost?

In the case of an unopposed divorce (i.e. there is no dispute between yourself and your spouse about the divorce or what should happen), your fees are likely to be limited to a set fee for legal costs, as well as Sheriff’s fees and minor expenses such as transport, photocopies etc. Sheriff’s fees can vary widely, depending on the distance he has to travel and how many attempts he has to make at serving pleadings on the opposing party, but generally these fees would be a few hundred rand. Where a divorce is opposed, the costs become unpredictable and entirely dependant on the specifics of the case.

How long does it take?

Where a divorce is unopposed and there are no complications or children involved, it can sometimes be finalised in as little as four weeks.

Where a divorce is opposed, it can easily take two to three years, or more. In most cases, however, divorces get settled before the parties have to go to Court – even where the divorce started out as an opposed divorce. As soon as the parties in an opposed divorce reach a settlement agreement and the divorce becomes unopposed, it can again be possible to finalise the divorce in as little as four weeks.

What you need to do

Before you approach the Court to start divorce proceedings, you will should get certified copies of as many of the following documents as you can:

  1. Your identity document
  2. Your Ante-Nuptial Agreement, if any
  3. The children’s births certificates, if any and
  4. Your marriage certificate

Also make sure you have the following information handy:

  1. Your full names, surname, identity number, occupation and place of residence
  2. Your spouse’s full names, surname, identity number, occupation and place of residence
  3. Date when you got married and where the marriage took place
  4. Children’s full names, surnames, identity numbers and
  5. Comprehensive details of any funds (such as pension funds, retirement annuities and provident funds) which you or your spouse belongs to.

You may institute divorce proceedings in either a High Court or Magistrates’ Court (Regional Court).

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Reference:

http://www.legal-aid.co.za/selfhelp/

GETTING CHILD CONTACT FOR DIVORCED PARENTS

Contact refers to maintaining a personal relationship with a child. It entitles a person to see, spend time with (visit or be visited) or communicate (through post, by telephone or any form of electronic communication) with a child who does not live with that person. The child’s parent/s or a person other than the child’s parent/s (such as grandparent) can obtain the right to contact a child, provided that the contact would serve in the child’s best interests.

What will the court consider when granting an order in respect of contact?

  1. The best interests of the child.
  2. The nature of the personal relationship between the child and his/her parent/s.
  3. The degree of commitment the parent/s has shown towards the child.
  4. The extent to which the parent/s has contributed towards the expenses in connection with the birth and maintenance of the child.
  5. The likely effect on the child of any change in the child’s circumstances, including the effect of being separated from the parent/s or brothers/sisters with whom the child has been living.
  6. Any family violence involving the child or a family member of the child.
  7. The need to protect the child from any physical or psychological harm that may be caused by subjecting or exposing the child to maltreatment, abuse, neglect, degradation, violence or harmful behaviour.
  8. The child’s age, maturity, stage of development, gender, background and relevant characteristics of the child.
  9. Any disability that a child may have and any chronic illness from which a child may suffer from.

A parenting plan will contain a clause setting out the reasonable contact that the parent of alternate residence shall have with the child during term time and school holidays, taking into account the child’s social, school and extra-mural activities.

​There are an infinite number of possibilities available when drawing up a parenting plan. Jobs, schools and a variety of other factors must still be taken into account. The bottom line is to find a plan that works for the whole family.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

References:

https://www.legalwise.co.za/help-yourself/quicklaw-guides/child-contact/

http://www.divorcelaws.co.za/the-non-custodian-parent-and-contact.html

WHEN CAN SPOUSES GET A DIVORCE?

There are only two grounds for divorce, namely the irretrievable breakdown of the marriage; or mental illness or continued unconsciousness of one of the spouses.

Examples of the irretrievable breakdown of a marriage as a ground for divorce include:

  1. the spouses not living together for a continuous period of one year;
  2. abuse towards the spouse or the children;
  3. adultery;
  4. habitual criminality;
  5. drunkenness or drug addiction; or
  6. loss of love and affection between the spouses.

The court’s discretion to grant a Divorce order

The court still has discretion not to grant a divorce order, and may postpone the proceedings or dismiss the claim if it appears to the court that there is a reasonable possibility that the parties may reconcile through counselling. If reconciliation is unsuccessful after a few months, the parties may proceed with the same summons. The summons will usually contain the averment that further counselling and/or treatment will not lead to any reconciliation. A court must, therefore, be satisfied that the marriage is really broken down and that there is no possibility of the continuation of a normal marriage.

What if the couple reconciles?

Where the parties reconcile and live together again after the summons was issued and served, it does not necessarily end the divorce proceedings. If, however, the reconciliation is unsuccessful after a few months, the parties may proceed with the same summons. It is extremely important to make sure that the summons is withdrawn formally if you do decide to reconcile. Withdrawal of the summons is formally affected when the plaintiff serves a document referred to as a notice of withdrawal of the summons on the defendant or his/her attorney. If this is not done, a divorce order may be obtained by default without the defendant being aware of it. If a divorce is obtained in this manner, the aggrieved party may approach the court to set aside the order.

Conclusion

Since the present law on divorce is no longer based on the principle of fault, defences like insanity or the plaintiff’s own adultery are no longer valid defences. Therefore, if a divorce is instituted on account of an irretrievable breakdown, there is in fact no defence to prevent the divorce from proceeding. But if the court finds that there is a reasonable possibility of reconciliation, it may postpone the proceedings in order that the parties attempt reconciliation; this, however, is not a defence, but merely amounts to a postponement.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

References:

Justive.gov.za
Legalwise.co.za

CAN BREAKING-OFF AN ENGAGEMENT PROMPT LEGAL ACTION?

Once a couple has become engaged, you could say that they have concluded a verbal contract to get married. From that point, up until the marriage, the couple would be committed to getting married, as well as the planning and preparation leading up to it. However, in some instances, one of those in the relationship might decide to break off the engagement. This might seem unimportant, but what if the couple had gone to great lengths to plan the wedding and even went as far as changing lifestyles in the expectation of getting married. Would the person being left behind be able to sue for damages lost?

Does our law mention engagement?

Our common law has, over the years, recognised the principle that the aggrieved party has a claim for breach of promise. Traditionally this claim comprises two parts, namely:

  1. The delictual claim which the aggrieved party would have under the action injuriarum for contumelia, in other words, damages for the humiliation caused as a result of the break-up of the relationship; and
  2. The contractual claim for the actual financial loss suffered by the aggrieved party as a result of the break-up of the relationship of the parties.

In the Supreme Court of Appeal case Van Jaarsveld vs Bridges (2010), it was found that no claim in South African law exists other than actual expenses incurred in the planning and preparation of the marriage.

The judgement draws attention to a court’s right and more importantly, duty to develop the common law, taking into account the interests of justice and at the same time to promote the spirit of the Bill of Rights.

ES Cloete vs A Maritz (2013) WCH

The question whether or not the claim for breach of promise is a valid cause of action in South African law was once again considered in the Western Cape High Court. In this Court, Judge Robert Henney was the presiding Judge in the matter of ES Cloete vs A Maritz.

Miss Cloete claimed that Mr Maritz proposed formally to her in Namibia on the 9th February 1999 with an engagement ring, and she accepted. The relationship was turbulent and a decade later Maritz called off the engagement and the intended wedding. Cloete instituted action against Maritz and alleged that Maritz’s refusal to marry her amounted to a repudiation of the agreement which they had reached 10 years earlier. In his judgment, Judge R Henney said: “Clearly, to hold a party accountable on a rigid contractual footing, where such a party fails to abide by a promise to marry does not reflect the changed mores, morals or public interest of today.”

The judge also said: “As pointed out by Sinclair, The Law of Marriage Vol 1 (1996), to hold a party liable for contractual damages for breach of promise may in fact lead parties to enter into marriages they do not in good conscience want to enter into, purely due to the fear of being faced with such a claim.”

Conclusion

Divorce, which in earlier days was only available in the event of adultery or desertion, is now available in the event of an irretrievable breakdown of the marriage. There is no reason why a just cause for ending an engagement should not likewise include the lack of desire to marry the particular person, irrespective of the ‘guilt’ of the latter.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. (E&OE)

CAN I AMEND MY WILL?

a3Having a Will is a final statement of how you want your assets to be managed after your death. However, sometimes you may want to change your Will and how your estate will be administered after your death. You may have had a child following the drafting of your Will, for example, and wish to include him/her in your Will. You may have also acquired more assets and would like to reconsider how these are divided between your possible heirs/heiresses.

What is a Codicil?

When you decide to make an addition to your Will, or a minor alteration thereto, you may make use of a Codicil. A Codicil is a schedule or annexure to an existing Will, which is made to supplement or to amend an existing Will. A Codicil must comply with the same requirements for a valid Will. A Codicil need not be signed by the same witnesses who signed the original Will.

What if I want to amend my Will?

  1. Amendments to a Will must comply with the same requirements for a valid Will and if you cannot write, with the same requirements listed under that heading.
  2. When amending a Will, the same witnesses who signed the original Will need not sign it.

Must I amend my Will after divorce?

A bequest to your divorced spouse in your Will, which was made prior to your divorce, Will not necessarily fall away after divorce.

  1. The Wills Act stipulates that, except where you expressly provide otherwise, a bequest to your divorced spouse will be deemed revoked if you die within three months of the divorce.
  2. This provision is to allow a divorced person a period of three months to amend his/her Will, after the trauma of a divorce.
  3. Should you, however, fail to amend your Will within three months after your divorce, the deemed revocation rule will fall away, and your divorced spouse will benefit as indicated in your Will.

References:

http://www.justice.gov.za/master/m_deseased/deceased_wills.html

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

RULE 43 APPLICATIONS

Divorce proceedings can take years to come to conclusion and this leaves certain issues unresolved until such a time.

A Rule 43 Application can be used to find a comparatively speedy interim solution to important issues such as maintenance and access to minor children.

If you are involved in an opposed divorce action you may wait years before getting your final divorce order. This means that your legal costs may end up sky high and your spouse may not be contributing to living costs of yourself or your children. There may also be issues with regard to custody of minor children or access to minor children that will eventually be resolved at the completion of the divorce proceedings for which you need to make interim arrangements. This is particularly helpful where one parent is preventing the other from having access to the minor children born out of the relationship. Luckily there is a way of dealing with these issues while you are still engaged in divorce proceedings.

A Rule 43 Application allows you to claim for a contribution towards the costs of a pending matrimonial action, for maintenance pendente lite (awaiting litigation), for interim custody of any child and for interim access to any child. [1] In order to do this you need to deliver a sworn statement which sets out what you are claiming for as well as the grounds upon which you are relying. A notice must also be attached to this sworn statement which you’ll find in the Uniform Rules of Court. These documents will usually be drafted by your attorneys after having consulted with you. Remember that a sworn statement must be signed before a commissioner of oaths. Make sure to read through this document thoroughly to make sure that it is complete and accurate before you sign it.[2]

A Rule 43 Application must be served by the sheriff and the Respondent must deliver a sworn reply to the sworn statement within 10 court days of receiving it. If the Respondent does not reply then he shall be barred from doing so. If the Respondent does reply then the Registrar must as soon as possible thereafter bring the matter before the High Court for summary hearing on 10 days notice to the parties.[3]

The High Court may then make an order that it deems as just or it may dismiss the Application if they can see from the sworn statements that the claims have no proper grounds or for any other reason that they deem to be just and fair. The court also has the power to change its decision through the same procedure where there has been a material change in the circumstances of either party or the circumstances of a child takes place or where the contribution towards costs proves to be inadequate.[4]

If you are involved in opposed Divorce proceedings and are struggling with any of the abovementioned issues then consider mentioning your interest in making an Application to the High Court in terms of Rule 43 to your legal representation if this remedy hasn’t been brought to your attention yet. It is an effective remedy to getting relief in what can be a long and drawn out process and decreases the chances of one party being prejudiced where they do not have the finances to fund the legal costs of the divorce proceedings.

References

  • Rule 43 of the Uniform Rules of Court: Rules Regulating the Conduct of the Proceedings of the Several Provincial and Local Divisions of the High Court of South Africa

[1] Rule 43(1)(a) – (c) of the Uniform Rules of Court: Rules Regulating the Conduct of the Proceedings of the Several Provincial and Local Divisions of the High Court of South Africa

[2] Rule 43(2) of the Uniform Rules of Court

[3] Rule 43(3) & (4) of the Uniform Rules of Court

[4] Rule 43(5) & (6) of the Uniform Rules of Court

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice.