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Legal Questions And Answers

If you have any legal questions not answered on this page please feel free to contact us and we will be happy to help.

There are different types of marriages

BURDEN SWART & BOTHA ATTORNEYS can help you choose which type of marriage contract is best suited to your circumstances.

There are three matrimonial property regimes:

  • MARRIAGE IN COMMUNITY OF PROPERTY
  • MARRIAGE OUT OF COMMUNITY OF PROPERTY &
  • MARRIAGE OUT OF COMMUNITY OF PROPERTY, SUBJECT TO THE ACCRUAL SYSTEM – See the Matrimonial Property Act that governs Ante nuptial Contracts (ANC)

Your marriage will automatically be on in community of property if you choose to marry without ANC, If you decide to marry out of community of property, you need to approach a notary to draw up an ANC which is registered in the Deeds Office. If you enter into an ANC the marriage will automatically be subject to the accrual system unless you specifically exclude this from your contract. You must sign the ANC before you get married.

We would like a face to face meeting with you.

If you prefer to meet with us, please give us a call so that we can make a booking. This meeting at our offices with you and your fiance will not take much of your time. Once you have reached an agreement, we prepare the contract while you wait and the contract is then signed and later lodged in the Deeds Office for registration.

In its most basic legal sense, marriage is In Community Of Property. When married In Community of Property, the estates of both parties are merged into one estate with an applicable 50/50 split of all assets and liabilities in the event of death or divorce.

Any legal agreement, from bond applications to cell phone contracts, need to be signed by both parties. It also means that any potential and future legal disasters, such as insolvency or debt, are liable to both parties. Should you divorce, all assets and liabilities are shared by both partners. In the event of the death of one partner, the surviving partner is left unprotected.

By getting married without an Ante Nuptial Contract (ANC), you are automatically married In Community Of Property and put yourself and your spouse at unnecessary risk.

What is an ANC?

An Ante Nuptial Contract allows both parties to retain any assets held before, as well as acquired during, the marriage. The main goal is to allow both parties to enjoy the legal freedoms held before marriage and to protect both partners from financial disasters that may occur in the future.

If parties wish to enter into a marriage Out of Community of Property (in other words to avoid the “we share everything” principle), they need to sign an ante nuptial contract. The main benefit of an ANC is that the properties, debt or assets of both remain completely separate.

There is also protection for either spouses in the event of insolvency, death or divorce.

Marriage out of community of property therefore works on the principle of “what is mine is mine, what is yours is yours.”
What type of ANC do you need?

The ANC with Accrual is a variation of the ANC. Any asset you had before the marriage remains yours, but both partners are entitled to a 50/50 share in the estate growth of the combined estates that occurs during the marriage.

The accrual is only calculated during divorce or after one partner dies.

Marriage out of community of property with the accrual system therefore works on the principle of “I am entitled to half of what you have earned during our marriage.”

When a couple enters into a marriage out of community of property with accrual, the signing of an ante nuptial contract with clear guidelines is crucial.

If someone you know dies without a will, it’s important to meet with a knowledgeable estate planning attorney as soon as possible. The attorney can explain how the legal system works when someone dies intestate and help ensure the deceased person’s estate is divided up the way he would have wanted it. The attorney can also explain what types of probate services are available.  Writing wills can be a difficult process.

The Purpose of a Last Will and Testament

A will is a legal document that explains how someone’s property and assets should be distributed when they die.

A legal, valid will explains exactly how assets should be divided and who receives what. It helps heirs avoid any confusion, and it speeds the process of distributing the estate. It can be set up so taxes are minimized. It also enables people with young children to ensure that their kids are taken care of once they are gone.r many people. It involves thinking about death, along with deciding who should get what property. But dying without a last will and testament means the court will decide who receives the property. And by the time the estate has been probated, there may be hard feelings among the heirs and fewer assets to divide up.

Dying Without a Will

Those who die without a will are said to die intestate. Once someone without a last will and testament dies, his assets will automatically be controlled by a probate court.

Without a will, the probate court will distribute all the assets based on the laws of the state where the property is located. It doesn’t matter who deserves what, if the person who died made any promises about property or what the deceased person would have wanted done.

Probate can be expensive and time-consuming. This is particularly true if there are a lot of assets involved or if the heirs end up fighting amongst themselves. Even with a relatively simple estate, probate may involve court fees and attorneys’ fees that will come out of the assets of the person who died.

Besides money, there are often emotional issues involved. When someone dies, they may leave behind items that have sentimental value for other family members or friends. A last will and testament is one way to ensure family heirlooms are given to the people who value them. But when a court decides who gets what, that family heirloom may go to someone who isn’t interested in it or doesn’t even want it.

There can also be serious tax consequences for those who die without a will. With a legal last will and testament, there are ways to avoid unnecessary taxes and ensure heirs get as much of the assets as possible.

The duty to maintain is based on blood relationship, adoption, or the fact that the parties are married to each other.

A child must be supported or maintained by

  • his or her parents, whether married, living together, separated or divorced, including parents who have adopted the child; and/or
  • his or her grandparents, whether or not the child’s parents were married to each other. However, this varies from one case to another.

The duty to support a family member is not limited to supporting a child. Any family member, irrespective of his or her age, can ask any family member to support or maintain him or her, provided that the following two conditions are met:

  • The family member who claims support is unable to maintain himself or herself.
  • The family member from whom maintenance is claimed is able to afford the maintenance that is claimed.
  • The main requirement of the means test is that the person who is liable to pay maintenance must have MEANS and the maintenance claimed must be REASONABLE

Maintenance is the obligation to provide another person, for example a minor, with housing, food, clothing, education and medical care, or with the means that are necessary for providing the person with these essentials. This legal duty to maintain is called ‘the duty to maintain’ or ‘the duty to support’.

Rule 43 is a High Court rule that basically provides for interim relief in divorce matters – with regard to custody and access of children and also for interim maintenance (and contributions to legal costs).
Many people don’t know that the rules of the High Court provide for interim maintenance, and this is particularly useful in cases where one party would otherwise struggle financially during the litigation process. Rule 43 applications, as they are known, are heard every day by the courts and as a result, one’s papers must be precise, concise and still provide the court with sufficient information on which to make a decision — given that no oral evidence is actually lead. The process is quick, the relief is speedy and can often affect the course of litigation. This is not a process for the man in the street to try and embark upon by him or herself – and in fact, attorneys are regularly approached for people who want a second opinion on what they consider a disastrous rule 43 result. Unfortunately, with no appeal, it is too late to approach an attorney after you have made a disastrous hash of your own papers while trying to avoid legal costs.

Burden Swart Botha Attorneys Pretoria

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