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MATRIMONIAL REGIMES

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MATRIMONIAL REGIMES:

On the eve of the happiest day of your life, filled with last minute preparations for the big day, it is easy to forget about the legal consequences of your marriage.

It is however, essential that couples select the correct martial property regime which will go a long way in protecting one another financially and getting a marriage off to a sound start.

There are three different systems, namely:

Married in community of property

Each spouse joins their respective estates, which includes all assets and liabilities, and they are then regarded as one entity.

Upon death or divorce, the joint estate is valued and each spouse (or their estate) is entitled to an equal half share of the joint estate. Each spouse will also be equally liable should there be outstanding debts.

This option is no longer as popular as it once was due to a number of disadvantages such as:

  1. Today a number of spouses are self-employed, and this system does not protect the other spouse should the business’s creditors come after the assets of the joint estate.
  2. Should the marriage dissolve, each spouse will share equally in the joint estate irrespective of their actual contribution.
  3. In most instances a spouse will require the other’s consent should they wish to enter into certain contracts, i.e. Suretyships.

Married out of community of property WITHOUT accrual

For all intent and purposes, the estates of both spouses are kept entirely separate before, during and after the marriage. “What’s mine is mine and what’s yours is yours”.

The biggest disadvantage with this system is if one spouse is less financially independent it may lead to unfairness. For example a number of women (or men) support their spouse’s career advancement by running the household and offering support which cannot be measured in monetary terms. Upon divorce, they may end up walking away with nothing.

This system is typically popular amongst spouses who have been married previously, who are both financially independent or have acquired substantial assets prior to the marriage.

Married out of community of property WITH accrual

This system is by far the most popular amongst young couples today. It combines the protection of an out of community marriage with the notion of sharing and rewarding each spouse equally for their advancements throughout the duration of the marriage.

Each spouse’s estate is given a value at the commencement of the marriage. Upon death or divorce, each spouse’s estate is again valued. The difference between these two amounts represents the growth (or reduction) in each spouse’s estate during the marriage.

The difference between the two growths constitutes the ACCRUAL. The spouse with the smaller growth will have a claim against the other spouse for half this difference.

Take the following scenario as an example:

Peter starts the marriage with a commencement value of nil, as does Jane. After 3 years they decide to part ways.

Jane had a very successful business during the marriage and her estate is now valued at R 500 000. Peter stayed at home to cook and clean and his estate remained at nil.

Jane’s growth is R500 000 and Peter’s is nil. The difference between the two is R 500 000. This amount constitutes the accrual.

Upon their divorce, the court will award Peter R 250 000 and Jane will be left with R 250 000. EQUAL SHARES IN WHAT THEY ACCUMULATED TOGETHER DURING THE MARRIAGE.

Should a couple wish to get married out of community of property with or without accrual then they must sign an Antenuptial Contract (ANC) before their wedding day.

Should you require advice and/or assistance in preparing your ANC contact Ashley at Du Plessis & Curran Attorneys on (021) 671 9322 or ashley@duplessiscurran.co.za.


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GRANDPARENTS AND THEIR RIGHT TO SEE THEIR GRANDCHILDREN

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GRANDPARENTS AND THEIR RIGHT TO SEE THEIR GRANDCHILDREN:

It is sad when a loved one passes away, especially when they have young children. In these circumstances what happens to the parent of the deceased i.e. grandparents and their contact with their grandchildren? In an ideal world it shouldn’t affect them seeing their grandchildren, but in reality the situation may become somewhat complicated.

Such a complicated situation arose in a matter before the Eastern Cape High Court. In this matter the grandparent’s son had passed away and the mother of the child had remarried. The mother abruptly stopped all contact between the child and the grandparents alleging that the grandparents were unfairly burdening the child by telling him that his real father “was in the sky”.

When considering matters of this nature the Court takes the following factors into account:

  • Best interests of the child
  • Relationship between the person and child
  • Degree of commitment that person has shown towards the child
  • Extent to which that person has contributed to the maintenance and/or upbringing of the child
  • Any other factor which the court considers necessary

It is usually in the best interest of a child that they maintain a close relationship with his/her grandparents. Members of the extended family play an important part in a child’s social and psychological development.

The court ruled that contact between the child and grandparents had to be re-instated.

For further information in this regard, contact Ashley at Du Plessis & Curran Attorneys on (021) 671 9322 or ashley@duplessiscurran.co.za.


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3 REASONS TO SIGN A MARRIAGE CONTRACT

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3 REASONS TO SIGN A MARRIAGE CONTRACT:

Wedding season is in full swing. Are you getting married? Then remember to sign a marriage contract before the Big Day.

Married in community of property is the default marital system in South Africa unless couples sign an Antenuptial Contract whereby they choose to be married out of community of property.

Here are three reasons why you should sign a marriage contract (Antenuptial Contract) before the Big Day:

  1. Creditors won’t be able to lay their hands on your estate if your partner runs into financial difficulty. Particularly important if either you or your partner are self-employed;
  1. You may acquire assets freely without the assistance of your partner;
  1. You are not “joined at the hip” financially and you may freely enter into contracts without the assistance of your partner.

Contact us for advice and assistance with the customisation of your marriage contract.


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RIGHTS OF UNMARRIED FATHERS

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RIGHTS OF UNMARRIED FATHERS:

Back in the day, fathers of children born out of wedlock were given a rough deal when it came to guardianship, custody and access to their children.

The tide began to turn in 1998, after a highly publicized court case, and through an act of parliament Courts were given the power to grant guardianship, custody and access to unmarried fathers.

Things have progressed further with unmarried fathers having full parental rights and responsibilities in terms of the Children’s Act.

Certain requirements do have to be met before an unmarried father has those parental rights and responsibilities. Those requirements are that:

  1. The father must have lived with the mother at the time of the child’s birth; or
  2. Regardless of whether the father lives or lived with the mother; he consents to:
  • Being identified as the father of the child; and
  • Contributes to the child’s upbringing; and
  • Contributes towards the expenses of the child

What does “parental rights and responsibilities” mean?

In a nutshell it means that you have the right to care for, maintain contact with, act as guardian and contribute to the maintenance of your child.

As guardian of your child you are expected to maintain your child’s property, if any, and assist or represent them when they enter into contracts. In addition, both you and the child’s mother both have to consent to the following:

  1. Child’s marriage i.e. only if under the age of 18 years;
  2. Their adoption i.e. if the mother marries and her husband wishes to adopt;
  3. Their removal or departure from South Africa i.e. mother wants to emigrate;
  4. Child’s application for a passport;
  5. Selling any property owned by your child.

Check our new post on www.myfamilylawyer.wordpress.com regarding the rights of unmarried fathers.


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PURCHASING PROPERTY AS AN UNMARRIED COUPLE

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PURCHASING PROPERTY AS AN UNMARRIED COUPLE

Are you an unmarried couple looking to buy a house together? If yes, then it’s wise to get a property partnership agreement (specifically suited to your needs) drawn up. The agreement should clearly state:

  1. Who pays for what i.e. purchase price, bond instalments, rates and taxes etc.
  2. What happens if you part ways.
  3. Procedures for resolving conflicts i.e. what happens if one of you wants to sell and the other doesn’t.

Ultimately it limits the potential for disagreements between you and your partner and protects your valuable asset.

For further assistance contact Ashley at Du Plessis & Curran Attorneys on (021) 671 9322 or ashley@duplessiscurran.co.za.


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ARE YOU LIVING WITH YOUR PARTNER? CONSIDER A COHABITATION AGREEMENT

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Are you living together with your partner? Consider a cohabitation agreement. 

Did you know? Cohabiting with a partner does not automatically afford you any protection, if the relationship ends.

In South Africa the Supreme Court of Appeal recently confirmed this in the case of McDonald v Young. The issues which the court had to decide upon were twofold namely whether Mr McDonald had established the existence of a joint venture agreement between the parties, alternatively, whether Ms. Young was under a duty, either by operation of law or by virtue of a tacit contract, to support Mr. McDonald subsequent to their cohabitation.

The parties were involved in a relationship and had cohabited, as man and wife, for approximately seven years. Shortly after the parties were introduced to each other Mr. McDonald took up residence with Ms. Young at her farm in Knysna. Mr. McDonald did not own any meaningful assets and had very limited income. Ms Young, on the other hand, was a woman of considerable means. Mr. McDonald had not received a regular income and he had, for a time during the course of their relationship, received a monthly allowance from Ms. Young.

After the relationship ended, Mr McDonald instituted legal action against Ms. Young.

Mr. McDonald claimed a half share in a property owned by Ms. Young on the basis, as alleged, that an express verbal joint venture agreement was concluded by them. He testified that the terms of the agreement were that Ms Young would contribute financially to the acquisition, completion and refurbishment of the property while Mr. McDonald would contribute his time and expertise to oversee the development of the property.

In this regard the Court held that Mr. McDonald had failed to show that a joint venture agreement did in fact exist and the claim was dismissed.

The alternative claim raised by Mr. McDonald was one for maintenance. The Court referred to previous case law and held that there was a reciprocal duty of support between married persons, but no duty of support arises by operation of law in the case of unmarried cohabitants. It was further held that to the extent that any obligations arise between cohabitants during the subsistence of their relationship, these arise by agreement only and only to the extent of that agreement.

Mr. McDonald tried to convince the court that the parties had entered into a tacit agreement in terms of which Ms. Young had agreed to support him even after the end of their relationship, but to no avail. The Court batted his argument out of court and the Appeal was dismissed.

If you are cohabiting with a partner, as man and wife, then ensure that you sign a cohabitation agreement which will regulate the financial consequences of your relationship.

LIVING TOGETHER


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WHAT EVERYONE SHOULD KNOW ABOUT HAVING A WILL

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Why do you need a Will?

A last Will and Testament is a legal document that dictates how you wish your estate (your personal property and possessions) to be dealt with in the event of your death.

It identifies those individuals or charities you have chosen to inherit from you. If a person dies “intestate”, that is without leaving a valid Will, their closest relatives will inherit their estate, in accordance with the South African Intestate Succession Act, 1987. If no relative can be found, the entire estate of an intestate individual will pass to the State.

What is included in your Estate?

Your estate comprises your net worth at your time of death – including everything you own and everything you owe. Your estate also includes any shares in listed companies, any business interests held either in your own name or through a company or close corporation, and anything to which you hold the licence – that means even your social media accounts.

What makes a Will valid?

For a Will to be valid it needs to meet the following legal requirements of the South African Wills Act of 1953:

  • Any person over the age of 16 years is legally entitled to make a Will
  • The testator (person making the Will) must be mentally capable of “appreciating the nature and effect of their act” of making a Will
  • The Will must be dated
  • The Testator must sign the end of the will – the testator can sign through making a mark such as an X or a thumb print, but this mark must be certified by a commissioner of oaths
  • If the document consists of more than one page, each page must be signed
  • Two competent witnesses, over the age of 14, need to be present when the Will is signed
  • The witnesses must also sign the document in the testator’s, and each other’s presence. Witnesses cannot sign by making a mark.

Appointing an executor

Your appointed executor’s role is to administer your estate and implement the provisions of your Will when you die. An executor may be any adult person you trust, such as your spouse, an adult child or a friend. You could also nominate a professional such as your lawyer or accountant, or a law firm or trust company. If you die without nominating an executor, or if your appointed executor is not willing or able to take up his duties, your beneficiaries must choose the person they would like to act as the executor.

It is imperative that your executor or duly appointed agent retains the original Will as the Master’s Office will not accept a copy and you will be deemed to have died intestate should the Original be misplaced.

If you have children, appoint a guardian

Generally, the surviving parent is automatically the guardian of minor children under the age of 18. However, if you have minor children it is advisable to appoint someone, in your Will, to act as guardian in the event of both you and your spouse/partner’s death.

What is a Living Will?

Unlike a last Will and Testament, which details your wishes regarding personal property after your death, a living will sets out your wishes, while you are still alive, relating to end-of-life circumstances in the event you are rendered incapable of surviving without medical support. This alleviates the need for your family to make difficult life-and-death decisions on your behalf.

Be prepared! Keep a file of important information and documents

Organise all your important information, documents and contact details into a file, as follows:

  • A copy of your Will and Living Will
  • A certified copy of your ID document
  • Contact details (email and telephone number) of heirs named in the Will
  • Bank account details
  • A list of debt obligations and due dates
  • A list of investment and retirement policies, with contact information of your financial advisor
  • For security’s sake keep a second copy of your file in another location.

office binders important documents

Entrust a family member or friend with all your passwords and security codes, not forgetting the code for your electricity meter. At the same time supply them with the access codes to your social media pages and ask them to close down your accounts in the event of your death.

Should you require assistance preparing your Will and/or Living Will please do not hesitate to contact the team at Du Plessis & Curran Attorneys on (021) 671 9322 or send an email to ashley@duplessiscurran.co.za.


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FOUR REASONS WHY YOU SHOULD HAVE A WILL

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With National Wills Week approaching, from the 14 to 18 September 2015, we thought we would help you have better insight into why having a will is essential.

Here are our top four reasons why you should have a will:

  1. You get to specifically decide who gets what.
  2. Any inheritance due to a child under the age of 18 goes to the Guardians Fund (a government department) until that child turns 18. Your Will can change this and ensure that the money goes to a Trust, specifically created in your Will, which is administered by people you know and trust.
  3. You appoint one person (or two) who is vested with the decision making and administrative function of reporting your estate and winding it up.
  4. The potential for family conflict is minimised as there is less room for fighting about a family members role, who gets what, who makes decisions and so forth.

Look out for our next blog post which will further elaborate on wills.


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PROVING TACIT TERMS OF A CONTRACT

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When parties enter into a contract they normally give expression to their common terms by some form of conduct. The conduct usually consists in expressing the terms of the contract in words, but may also take some other form, like a nod of the head or a wave of the hand. I.e the conduct can be in any form which allows one party to make their intention known to the other.

Terms expressed by words are known as express terms.

There is another category of terms which derive from the common intention of the parties but which are not expressed by them. These terms are inferred from the express terms and surrounding circumstances (including conduct) of a contract. They are deduced or inferred from the facts and may be called tacit terms.

There is no difference between express and tacit terms as far as their nature and effect are concerned. However, there is a difference in the way in which these terms are to be proved: an express term is proved by direct evidence and a tacit term by circumstantial evidence. The courts are generally slow to import a tacit term into a contract, the attitude being that if the parties had an opportunity to expressly discuss a particular intention or future factual scenario, they should have done so.

The courts adopt the innocent bystander test whichis expressed as follows :

You must only imply a term if it is necessary in the business sense to give efficacy to the contract. That is, if it is such a term that you can be confident that if at the time the contract was being negotiated someone had said to the parties: “What will happen in such a case?” they would have both replied: “Of course, so-and-so. We did not trouble to say that; it is too clear.”   

In many cases the reason for the parties failure to give expression to the term which one of them subsequently contends should be included in the contract, will be that they never thought of the particular matter when they were negotiating the contract, and not that they thought of it but decided that it was such an obvious term that they need not express it. And if they did not think of a particular term it can hardly be said at a later stage that they themselves intended the term to operate.

It will not be easy for a court to be confident of a particular unexpressed intention where the parties who did not actually envisage the alleged circumstances during their negotiations now dispute an alleged tacit term. The courts have consequently attempted to explain the test with references such as “imputed intention” of the parties or what may reasonably be assumed to have been their intention.

All told, the courts seem to adhere to the intention of the contractants as the basis for a tacit term inasmuch as the alleged unexpressed term must be compatible with the expressed intention of the parties. References to a presumed intention simply mean that there are circumstances which justify the inference that the alleged term does fall within the scope of the parties actual expressed intention even though they may not have had the particular alleged term in mind.

The business efficacy of the contract and what reasonable contractants would have agreed upon in the circumstances of the particular case are part of the facts from which the inference of the alleged intention can be made. To this extent the bystander test has been objectified. If such an inference cannot be made, a consensual tacit term cannot be read into the contract.


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MEDIATE BEFORE YOU LITIGATE

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Mediation has become increasingly popular as an alternative means of resolving both family and commercial disputes. Litigating in a court of law is a lengthy process which has out priced itself and is unaffordable for the majority of South Africans.

So what is mediation?? Mediation is typically defined as a process in which parties are assisted by a neutral third party to explore possibilities of resolving issues between themselves by mutual agreement. To name a few of the advantages of mediation:

i) Parties arrive at their own agreements, without a third person telling them what to do
ii) The process encourages problem solving
iii) Cost effective
iv) Confidential
v) Matters resolved relatively quickly
vi) Impartial party facilitates and assists with discussions
vii) Future business relationships and/or family relationships are salvaged as the process is amicable and tends to decrease hostility and reduce conflict.

The mediation process is voluntary and requires co-operation from both sides. In the past mediation was typically thought to be the ‘soft option’ weak approach however, the tide is turning and mediation is proving to be a very successful way of resolving disputes. As the backlogs at Court continue and the legal costs escalate mediation will no doubt become a far more appealing method of resolving conflicts.

For further information contact Ashley on (021) 933 9440 or ashley@duplessiscurran.co.za

 


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