Latest News


January 18, 2024

SELLING A PROPERTY WITHOUT BUILDING PLANS

Do you need building plans when selling a property? Any building on your property requires approved building plans unless the building is defined as “minor building […]
December 18, 2023

IMMINENT CHANGES TO THE DIVORCE ACT

Muslim marriages given full legal recognition. During 2022 the Constitution Court found in Women’s Legal Centre Trust v President of the Republic of South Africa and […]
December 5, 2023

HOW TO HANDLE UNLAWFUL LAND INVASION

Someone is invading my property – what should I do? When someone invades your property, you have rights! It is imperative that you act immediately. This […]
November 3, 2023

THE RIGHTS OF UNDOCUMENTED BIOLOGICAL FATHERS

What is a father’s rights if he is not identified on a birth certificate? It is a reality in South Africa that many biological father’s details […]
October 2, 2023

THE IMPACT OF A NAME CHANGE ON YOUR TITLE DEED

I changed my name, what happens to my property’s title deed?   When a person formally changes their name at the Department of Home Affairs (eg. […]
August 28, 2023

HOW TO CHOOSE AN EXECUTOR FOR YOUR WILL

Who to choose as the executor of your will? An executor is the person who is appointed by the Master of the High Court to ensure […]
August 10, 2023

SCREENING AN EMPLOYEE INTO FIC

Must an employer FICA their employees? Directive 8 and the Public Compliance Communication recently gazetted by the Financial Intelligence Centre provide Accountable Institutions (AI’s) with practical […]
July 19, 2023

WHAT YOU NEED TO KNOW ABOUT SPOUSAL MAINTENANCE

WHAT YOU NEED TO KNOW ABOUT SPOUSAL MAINTENANCE Spousal maintenance is an important part of a divorce settlement, as it provides financial support to one spouse […]
May 1, 2023

Why Employers Can’t Afford to Ignore FICA

Why Employers Can’t Afford to Ignore FICA FICA stands for the Financial Intelligence Centre Act and is a law in South Africa aimed at combating money […]
April 20, 2023

Greylisting is not a colour!

Greylisting is not a colour!   What is “Greylisting”? The Financial Action Task Force (FATF) is a global inter-governmental body that promotes policies and international standards […]
April 6, 2023

CAN I CLAIM MAINTENANCE FROM MY EX-SPOUSE AFTER THE DIVORCE?

CAN I CLAIM MAINTENANCE FROM MY EX-SPOUSE AFTER THE DIVORCE?   In South Africa, there is a legal duty on one spouse to support the other […]
March 6, 2023

SEQUESTRATION OF DEBTORS

SEQUESTRATION OF DEBTORS Sequestration can be executed voluntarily or you may be compelled to be sequestrated when your liabilities exceed your assets.   The procedure and requirements […]
February 2, 2023

Do I as the Tenant have any remedy against the Landlord for failure to maintain the property? 

I have a 12-month contract in place for a residential property.  The conditions of the house have deteriorated to such an extent that I feel it […]
January 10, 2023

The required formalities for a valid will

Sometimes people choose to draw up their own will or they feel the need to put a will in place in a hurry and don’t have […]
January 10, 2023

Cohabitation

Are you and your partner living together? If your answer is yes, you might not be aware of the various options available to protect your assets […]
December 5, 2022

Can I sell or rent out my RDP house?

In terms of the Constitution of South Africa every person has the right to adequate housing.  The right to housing is also closely linked to other […]
December 5, 2022

Can I ask my landlord to install a generator?

Is a landlord obliged to upgrade the leased property to ensure that the tenant can live comfortably and conveniently through loadshedding? Landlords have many obligations in […]
November 2, 2022

Can I ask my landlord to install a generator?

Is a landlord obliged to upgrade the leased property to ensure that the tenant can live comfortably and conveniently through loadshedding? Landlords have many obligations in […]
September 30, 2022

Does my debt expire? 

In South Africa we have laws that regulate when our debt expires. The laws that regulate it is the Prescription Act as well as the National […]
August 25, 2022

The required formalities for a valid will

Sometimes people choose to draw up their own will or they feel the need to put a will in place in a hurry and don’t have […]
July 22, 2022

Muslim marriages are now legally recognized in South Africa

DID YOU KNOW? MUSLIM MARRIAGES ARE NOW LEGALLY RECOGNIZED IN SOUTH AFRICA. “We are asking the court not to close the door on women. Give them […]
June 29, 2022

Private prosecution: is justice attainable even if the state fails us?

Members of the public, and specifically victims or those close to them, are often disheartened by the National Prosecuting Authority (“NPA”) and its decisions not to […]
June 29, 2022

Avoid the “chase” following the purchase of a business

When you intend to buy a business from a seller as a going concern, it is important to do your homework in respect of the business […]
May 12, 2022

My child is being bullied at school – Can the law assist?

In recent years, reports of bullying incidents have been on the increase in schools and have reached a point where some have tragically resulted in loss […]
May 12, 2022

Can your neighbour object to building plans?

Nothing can disrupt a person’s life as much as a dispute between neighbours and even more so when there are building works and renovations involved. Disputes […]
May 12, 2022

To all the mothers out there

We don’t always have the time to express our love and gratitude to our Mom’s but with Mother’s Day having passed we would like to also […]
April 1, 2022

Just another day… Contracts subject to due dates unraveled

Contracts often contain clauses requiring one or more parties to attend to certain requirements within a specific time period, or, if certain things did not happen […]
April 1, 2022

Fighting like cats and dogs over pets in flats?

If you own a pet and live in a complex subject to the Sectional Title Schemes Management Act, this article may be just for you. What […]
March 1, 2022

Who exactly needs an energy performance certificate?

Only one year left for buildings to comply… Energy Performance Certificates are now mandatory for certain commercial and non-residential buildings (eg. schools, offices, shopping centres and […]
March 1, 2022

It’s Autumn already?

Can you believe that March is the start of Autumn already!? We are still working on our summer bodies and winter is already around the corner! […]
March 1, 2022

The cost of losing a legal battle

I recently sued someone who owes me R50,000. The Court found that the loan agreement was invalid and that the amount was not owed to me. The legal costs were subsequently awarded […]
January 27, 2022

What will make 2022 different from the two previous years?

Well, we can keep on doing what we are currently doing by repeating the patterns day after day, month after month or year after year and […]
January 26, 2022

How to deregister a dormant trust

During the years people’s needs might change and trustees or beneficiaries move on to different phases in their lives which might make the use of a […]
January 26, 2022

An instruction to draft a will is not a valid signed will despite clear wishes from the deceased

The Wills Act sets out the requirements for a valid Last Will and Testament. For a will to be valid, it must be signed and witnessed. […]
January 10, 2022

Welcome 2022

We stand at the threshold of a new year scattered with challenging but exciting prospects. We will not be making new year’s resolutions (the losing weight, […]
January 10, 2022

Beyond reasonable doubt: What does it mean?

We have all seen the courtroom dramas where the accused are charged with criminal offences, and the State has to prove its case. Similarly, we are […]
January 10, 2022

How to care for a mentally disabled adult the legal way?

The World Health Organisation’s Report on Ageing and Intellectual Disabilities, states that a person with down syndrome is regarded to have an intellectual disability as opposed […]
December 1, 2021

A year in review

2021 was the year of adapting and renewal for us at Smuts & Co. We have become more tech-savvy and more digital than ever before. We […]
December 1, 2021

Things to consider when a business owner applies for a home loan

Obtaining a bond as a self-employed individual can appear daunting, however, with adequate preparation and support from professionals, your dream to become a home owner is […]
December 1, 2021

The ups and downs of property co-ownership

Property ownership is no small feat. It is one of the most reliable forms of investment and one of the biggest items that most people have […]
October 29, 2021

It is almost that time again

Christmas carols are echoing in malls whilst trees with tinsel adorn the isles. We are in the end stretches of 2021 and the pressure to register […]
October 29, 2021

Must employees disclose their vaccination status?

While employers cannot force their employees to be vaccinated, there are various grounds for dismissing employees who object, provided that the employer has conducted a thorough risk assessment to determine the need for vaccination. […]
October 29, 2021

My husband is not paying maintenance, may I refuse him seeing the kids?

As Attorneys, we often get this question.  Although it would seem fair that while the father is not contributing to the child’s monthly expenses, he should […]
September 1, 2021

Welcome Spring

August is done and September is already butting heads with October. Needless to say that we drank way too much coffee the past month and between […]
September 1, 2021

Home office: Can I deduct my expenses from tax?

Tax practitioners have been inundated with queries from clients on the possible relief offered by the South African Revenue Service (“SARS”) on the possibility of deducting […]
September 1, 2021

Cancelling your bond? What you need to know…

Most homeowners selling their properties have a registered bond that needs to be cancelled with the financial institution that originally financed their purchase. What most homeowners […]
July 30, 2021

Home is where the heart is

Chances are that you asked yourself sometime during the past month – why are we still here in South Africa? And if you are not in […]
July 30, 2021

When does my debt prescribe?

What is prescription? As a general rule, prescription occurs when a debtor’s liability to pay a specific debt is extinguished as a result of the passing […]
July 30, 2021

What you need to know about signing documents abroad for use in South Africa

Many clients are under the impression that a document can be emailed to them, they can print it, sign and then post the originally signed document […]
June 28, 2021

What does the new draft bill on firearm ownership mean for gun owners?

The Civilian Secretariat for Police Service (CSP) called for public comment on a draft of the Firearms Control Amendment Bill. In a summary the draft shows […]
June 28, 2021

Finding yourself in contempt of court is no small matter

When you are on the receiving end of a court order, it would be wise to obey the terms set out in it. Disobedience in terms of a court order may cause you to be in […]
June 1, 2021

Passing off: When your business’s reputation is threatened

Passing off is a delictual remedy that is derived from English law and has been implemented in South African law. The most authoritative definition of passing off was given in the Capital Estate and General Agencies […]
June 1, 2021

3 Steps on how to legally cancel a contract

As attorneys, we tend to deal with situations where clients are under the impression that once a person is in breach of a contract, the contract […]
June 1, 2021

Winter is here

We saw an interesting post on social media during this week. It read “I don’t know a single successful person who leaves their shopping cart in […]
May 4, 2021

What a month

April was a sad month for the Mother City dealing with the aftermath of the devastating Rhodes Memorial fire. While the fire has been contained, as […]
May 4, 2021

10 things to know when purchasing a property

Buying a property, especially if it is your first home, is often an emotional and stressful experience. We have identified the top tips in making the […]
May 4, 2021

Considerations for dismissal based on refusal to be vaccinated

The distribution of a COVID-19 vaccine is seen as a fundamental component to ending the pandemic. However, mandatory vaccinations in the workplace should be treated with […]
April 20, 2021

Stepping into the second quarter of 2021

The year is quickly gaining momentum and the feeling of being overwhelmed by what still needs to be done is present in most aspects of our […]
April 20, 2021

10 “Legal” tips when selling your home

As attorneys we normally only get involved at the end stage of the home selling process, but this also means that we encounter all the pitfalls […]
April 20, 2021

What role do grandparents play in a child’s wellbeing?

By operation of law, the liability to maintain someone is based on three factors: firstly, the claimant’s inability to support himself or herself; secondly, his or her relationship […]
March 26, 2021

“It is not in my job description” may not be a valid excuse to refuse work instructions

It often happens that employers give instructions to employees that do not form part of their usual routine. This article will briefly discuss whether employees are obliged to execute all instructions […]
March 23, 2021

Striving for more

Most people must work in order to survive, but for us at Smuts & Co Attorneys it is not only a way to earn a living, […]
March 23, 2021

Drafting employment contracts for ad hoc activities

It often happens that employers give instructions to employees that do not form part of their usual routine. This article will briefly discuss whether employees are obliged to execute all instructions […]
March 23, 2021

I’ve been blacklisted – what now?

Lockdown was hard, but even harder on some of our pockets. If you are concerned you might be blacklisted or that your credit record has been […]
February 15, 2021

Traditional weddings and Antenuptial Contracts – What you need to know!

In South Africa customary law marriages are governed by customary law, namely the Recognition of Customary Marriages Act and the Matrimonial Property Act. If a couple […]
February 15, 2021

Is your criminal record impacting your life?

Most people living with a criminal record will be able to explain precisely how the smallest of criminal offences can have a big impact on your […]
February 15, 2021

One down 11 to go!

The first month of 2021 is done and dusted. In the blink of an eye people will be putting up Christmas decorations, announcing a new year […]
January 18, 2021

How soon can I expect my inheritance?

The question most people ask, when it comes to the administration of an estate of a loved one, is when will the estate come to a […]
January 18, 2021

When can businesses return to ‘business as usual’

2020 was a year that will always be remembered for a variety of reasons. Apart from the obvious invasion of COVID around the world, South Africa […]
December 11, 2020

Claiming self defence? What you need to consider

Private defence, which is commonly and more narrowly referred to as self-defence, is probably the first type of defence you will come across in your life, […]
December 11, 2020

General or Special power of attorney?

General or Special power of attorney?Special and General powers of attorneys are useful tools in property transactions. What is a power of attorney? A power of […]
November 17, 2020

Q & A : Trusts

Can anyone register a trust? Yes, but it is a costly and administratively complicated process and it is therefore not suited for every individual.  In the […]
November 17, 2020

To rent or not to rent

The property market was labelled a buyer’s market for most of 2020. Even though the year proved to be disastrous in many respects, many factors were […]
November 17, 2020

To Our Clients

It is easy to tell when we get close to the end of the year as the November rush starts. During this time clients realise that […]
October 15, 2020

Make sure your property flip does not flop

During Season 4 of Modern Family, viewers sat in stitches watching as Cam and Claire tried their luck in house flipping, where a property is bought with the sole purpose of improving it […]
October 15, 2020

Eviction and the lockdown

The Lockdown has resulted in various rental disputes between landlords and tenants. These disputes include tenants not paying rent as a result of inadequate or no […]
September 10, 2020

Keep calm and avoid reposession of your house

In South Africa it is a real risk that your house will be repossessed by financial institutions and sold on auction if you continuously default on […]
September 10, 2020

The importance of witnesses when signing a will

I gave instructions to my attorney to prepare a Will for me as my most recent Will no longer reflected my wishes. My attorney emailed the Will to me with clear instructions as […]
September 10, 2020

Spring is in the air and opportunities are blooming!

Spring normally marks the end of winter and represent renewal and new beginnings. As we enter the “new normal” and different ways of doing business we […]
August 7, 2020

Does the Disaster Tax Relief Administration Bill offer real relief?

The last few months have been extremely tough for small business owners as a result of the global COVID-19 pandemic, and various lockdown measures that have created a challenging trading […]
August 7, 2020

7 Things to know before signing an offer to purchase for a property

It is always exciting for prospective buyers to start house hunting and find that perfect property or dream home. However, signing to purchase a property is […]
July 15, 2020

Working from home can work for you

As the old adage goes, change is as good as a holiday. But the way that the novel coronavirus has shaken up the world we live […]
July 15, 2020

What you need to know if you can’t find your title deed

– by Natasha Davidtz The Department of Rural Development and Land Reform issued Regulations bringing about an amendment to Regulation 68 of the Deeds Registries Act, […]
June 17, 2020

Questions to consider during the reporting of an estate

How do I report an estate to the Master?     A deceased estate comes into existence when a person dies leaving property or a Will or a document which […]
June 17, 2020

What is next for struggling businesses?

South Africa has been experiencing very slow economic growth and international rating agencies have subsequently downgraded South Africa’s investment outlook to “junk status”. This, and a […]
May 14, 2020

Moving residence during the lockdown – Heinrich Theunissen

On Thursday 07 May 2020 the Minister of Cooperative Government and Traditional Affairs issued directions in terms of section 27(2)(f) of the Disaster Management Act, 2002 […]
May 14, 2020

Should I participate in a Stokvel?

People the world over are fascinated by any “get rich quick” scheme and South Africans are no exception. With COVID-19 taking its toll on desperate South […]
May 14, 2020

Parental rights during the lockdown

On 23 March 2020, President Cyril Ramaphosa announced a nationwide 21-day lockdown, which was extended by a further two weeks on 9 April 2020.On 30 March […]
May 14, 2020

Ensuring certainty amid uncertainty

The last few weeks have seen huge changes in the way we live our lives. The demand for wills has surged during the COVID-19 pandemic, which […]
April 24, 2020

Lockdown Tips: Simple steps to take control of your finances

The COVID-19 pandemic has spread across the globe and left economic destruction in its path. Now, more than ever, it is of utmost importance to take […]
April 24, 2020

Divorce proceedings during lockdown

Unfortunately, during the lockdown period only urgent matters arising from the activities associated with disaster management will be attended to.All is however not at a deadlock […]
April 24, 2020

Safeguard your children’s inheritance

Ensuring their children are cared for when they pass away is one of the primary reasons people draw up a will. But what happens when the […]
April 24, 2020

The real estate comeback

At the end of the national lockdown, many South Africans will have gotten to know their properties better than the architects who designed them. For some, […]
September 26, 2019

Keep left to stay on the right

Duties of a reasonable driver: Among the duties of a motorist are: to keep a proper look-out, drive at a reasonable speed, observe the rule of […]
September 26, 2019

Are you legally married?

All marriages entered in terms of Islamic law, are currently not recognised as valid marriages. For a valid marriage to be recognised in South Africa one […]
August 12, 2019

What does the new Property Practitioners Act mean to the public?

The Property Practitioners Act (PPA) is new legislation that will replace the current act regulating estate agents. When does it come into effect? The legislator has […]
July 17, 2019

Tips for investing in property for retirement

Have you ever wondered if real estate is a sound investment? Well, it certainly can be! There are people out there who have invested in real […]
July 17, 2019

Domestic workers: Now able to claim for injuries on duty

For a long time, the Compensation for Occupational Injuries and Diseases Act, better known as COIDA, has provided compensation to employees who were injured on duty […]
July 17, 2019

How do our courts interpret Wills and Testaments?

It is trite that the law of succession aims to give effect to the wishes of the testator. Accordingly, when a person passes on and leaves […]
June 13, 2019

Who will take care of your children after your death?

The Children’s Act, 38 of 2005 (hereinafter referred to as the Children’s Act) governs the laws relating to the care, contact and the protection of children. […]
June 13, 2019

How do I register a trust?

A trust is an agreement between the person who owns the assets and the appointed trustees. A trust can be a good way to preserve your […]
June 13, 2019

How secure is the estate you live in?

Choosing to live in a secured residential estate in South Africa is becoming ever more popular with South Africans. Entering your estate whilst security guards watch […]
June 13, 2019

Sale of Property agreements: Types of clauses

Non-Refundable or Forfeiture Clause Sellers are sometimes sold on the idea of including a non-refundable deposit clause in the Contract of Sale. More often than not, […]
May 17, 2019

My neighbours are renovating their house without complying with building regulations. What are my options?

What one’s neighbour builds on their property, is not something the owner of the neighbouring property has a lot of control over. Unfortunately, it can have […]
May 17, 2019

Satellite dishes – to stay or not to stay?

One of the grey areas in rental and sales agreements is the question whether certain fixtures to properties are regarded as part of the immovable property […]
May 17, 2019

Land Expropriation Bill: What It Means For Your Landownership Rights

During 2018, the African National Congress (ANC) announced its intention to drastically speed up the land reform process in South Africa when President Cyril Ramaphosa announced […]
April 17, 2019

MAINTENANCE OF SURVIVING SPOUSE

The idea of freedom of testation is a core value of South African law and enjoys wide protection. The Maintenance of Surviving Spouses Act, 27 of […]
April 17, 2019

TRUSTEES’ DUTIES AND POWERS

All the powers of a trustee are ‘fiduciary’, which means that they must be exercised as follows: in the best interests of all the beneficiaries; only […]
April 17, 2019

BIG CHANGE TO SMALL CLAIMS COURT

As of 1 April 2019, the Small Claims Court Jurisdiction has increased from R15 000 to R20 000.There are 414 small claims courts in South Africa, […]
March 12, 2019

Choosing guardians for your minor children

My husband and I have two minor children. I am concerned about who will look after our children in the event of my husband and I […]
March 12, 2019

Interim maintenance until date of divorce: Husband’s nightmare and wife’s weapon?

Given the complicated nature of divorce proceedings, and the length of time required to finalise a divorce, the existence of interim relief until the date of […]
March 12, 2019

PRIVATE SCHOOLS IN SOUTH AFRICA ARE NOT ABOVE THE LAW

Private schools in South Africa are essentially autonomous in how they govern and operate. But does this entitle private schools to operate to such an extent […]
March 12, 2019

WHAT DOES 2019 HAVE IN STORE FOR THE ECONOMY AND THE PROPERTY MARKET?

There is no doubt that 2018 was a very challenging year for both the economy and the property market. As 2019 is in full swing, you […]
January 31, 2019

“THE IMPORTANCE OF REPORTING AN ESTATE IN ORDER TO TRANSFER PROPERTY TO THE HEIRS”

Losing a partner or a spouse is traumatic enough but being unprepared for the practical financial realities of death can make it all the more devastating. […]
January 31, 2019

APPLICATIONS FOR POSTNUPTIAL CONTRACTS

In the olden days the question of which marriage regime one would choose to be applicable on one’s marriage was not specifically relevant unless one of […]
January 31, 2019

LOST YOUR TITLE DEED?

Previously the process of replacing a lost title deed was fairly straight forward, but with the amendments to the Deeds Registries Act Regulations 68(1) and 68(11) […]
November 27, 2018

THE CANNABIS JUDGMENT: IS IT LEGAL NOW?

Cannabis has historically been criminalised in South Africa. It has, until recently, been a criminal offence to possess, cultivate or use cannabis. However, this position has […]
November 27, 2018

WHEN DOES THE ONE MONTH NOTICE FOR TERMINATION OF A RESIDENTIAL LEASE AGREEMENT START?

Recently the Western Cape High Court delivered judgement in the Noella Kabunda Luanga v Perthpark Properties Ltd case specifically relating to section 5(5) of the Rental […]
November 27, 2018

“ARE TESTAMENTARY TRUSTS USEFUL IN PLANNING YOUR ESTATE?”

Many clients are advised to make use of a testamentary trust while attending to their estate planning and one of the most asked questions relates to […]
November 27, 2018

DOES AN ESTATE AGENT HAVE A DUTY TO DISCLOSE A MURDER OR SUICIDE WHEN SELLING OR LEASING A PROPERTY?

In terms of the Estate Agency Affairs Board’s Code of Conduct, an estate agent is compelled to disclose all facts which are, or should reasonably be, […]
October 22, 2018

CAN I AVOID A DRAWN-OUT LEGAL BATTLE WHEN I GET DIVORCED?

Normal procedure in an opposed divorce: Divorce proceedings can lead to a long, drawn-out and very expensive procedure if the parties are not able to reach […]
October 22, 2018

CAN MY LANDLORD EVICT ME AFTER EXPIRATION OF MY RENTAL CONTRACT

It is standard practice today for landlords to rent out properties on fixed term contracts (most common being 1 year contracts) and to use either attorneys […]
October 22, 2018

BEFORE LEASING, INCLUDE THESE IN THE AGREEMENT

If you consider leasing out your property, it is important not to overlook any requirement and expectations you may have of the incoming tenant. A basic […]
September 20, 2018

RENTAL RIGHTS DURING THE WATER CRISIS

As a constitutional right, everyone should have access to clean water. Even during a water crisis. In cases where there is a signed agreement between a […]
September 20, 2018

WHEN CAN THE MUNICIPALITY DISCONNECT MY WATER AND ELECTRICITY?

The municipality is the place where most, if not all, services are monitored for their availability to a property, and it is the very place that […]
June 29, 2018

CAN I OBTAIN FINANCING IF I DON’T OWN IMMOVABLE PROPERTY AS SECURITY?

The article gives a brief overview of what a notarial bond is, the requirements that need to be complied with to register a notarial bond and […]
June 29, 2018

ARE FATHERS ENTITLED TO PATERNAL LEAVE?

Fathers could spend up to two weeks with their newborn babies, while adoptive parents and parents-to-be via surrogacy, could get up to 10 weeks of leave. […]
June 29, 2018

DAMAGE TO PROPERTY

What happens when your property has been purposefully damaged, especially during an altercation? Uber car torching During the road closures by meter taxis in Johannesburg on […]
June 29, 2018

THE DO’S AND DON’TS OF CONTRACT CANCELLATIONS

Every person, whether an individual or a juristic person, will find themselves in a situation where they will want to terminate a contract. The aim of […]
June 27, 2018

WHEN DOES PRESCRIPTION OF A DEBT START?

Debt does not last forever, after a period of time it prescribes and becomes invalid. Prescribed debt can be explained as old debt that has not […]
June 27, 2018

THE RIGHTS OF A DOMESTIC PARTNERSHIP

Domestic partnerships, also known as cohabitation relationships, are becoming more common in our modern day society, and it therefore becomes ever more important for parties to […]
June 27, 2018

THE A, B AND C OF SERVICE OF LEGAL DOCUMENTS

How are legal documents supposed to be served, and what is regarded as invalid service? Purpose of service of legal documents: The fundamental rule with regards […]
June 27, 2018

PROPERLY EXECUTING A WILL IS EXTREMELY IMPORTANT

I gave instructions to my attorney to prepare a last will and testament for me as my will no longer reflected my wishes. At my request, […]
May 2, 2018

HOW AND WHEN TO USE THE SMALL CLAIMS COURT

The small claims court (SCC) is for anyone who wants to institute a minor civil claim against someone else. You can also claim against companies and […]
May 2, 2018

CO-OWNING PROPERTY WITH SOMEONE ELSE: THE UPS AND DOWNS

What is co-ownership? Co-ownership is when one or more people jointly own the same property. In essence, it is when they legally share ownership without dividing […]
May 2, 2018

CAN TRUSTEES BAN YOUR PET IN A SECTIONAL TITLE SCHEME?

Problems around the ownership of pets are common amongst owners of sectional title properties, but while laws may be imposed by the trustees of the homeowners’ […]
May 2, 2018

HOW CAN AN UNMARRIED FATHER OBTAIN PARENTAL RIGHTS AND RESPONSIBILITIES?

Under the old dispensation, where parties were divorced, one parent (usually the mother) would usually be awarded custody of a minor child and the other parent […]
April 4, 2018

IMPORTANT STEPS FOR THE TRANSFER OF PROPERTY

The transfer process can take up to three-months, sometimes longer. There are different steps involved in the transfer of a property, these include: Instruction. A conveyancer […]
April 4, 2018

WHAT IS A TITLE DEED?

If you are planning to buy a new property, you will need to get the title deed transferred into your name to prove that you are […]
April 4, 2018

HOW TO APPLY FOR SPOUSAL MAINTENANCE?

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 […]
April 4, 2018

VIGILANTLY OR CRIMINAL? TAKING THE LAW INTO MY OWN HANDS

If someone gets something of theirs stolen, they might be tempted to go take it back, by force if necessary. However, that would be considered illegal […]
March 20, 2018

VAT increase and the effect on property transfers and the registration of transfers before and after 1 April 2018.

The increase was announced in the Minister of Finance’s Budget Speech on 21 February 2018. The standard rate of VAT will change from 14% to 15% […]
February 8, 2018

AWAITING YOUR DEPOSIT

What to know when your landlord has your deposit and has failed to pay it out You have viewed the new property and secured it by […]
February 8, 2018

CAN MY PROPERTY BE USED FOR AIRBNB?

When deciding whether to become an Airbnb host, it’s important for you to understand how the laws work in your city. According to Brett Herron, the mayoral […]
February 8, 2018

IMMEDIATE STEPS FOLLOWING THE DEATH OF A LOVED ONE

The death of a loved one is a difficult process to go through, and when the inevitable occurs, it is important to remember what happens next. […]
February 8, 2018

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, […]
January 30, 2018

LEGALLY OWNING A FIREARM IN SOUTH AFRICA

Many people in South Africa own a firearm or intend to own one in the future. However, the right to possess a firearm is not guaranteed […]
January 30, 2018

MINIMUM WAGE INCREASE

The Department of Labour released a media statement notifying trade unions about the wage increase. Once it becomes enacted as a law, no employee may be […]
January 30, 2018

SOCIAL MEDIA: WHAT LINE CAN’T I CROSS AS AN EMPLOYEE?

There are cases of employees posting sensitive or disrespectful information and messages about their employers online. This might seem like an innocent joke with the people […]
January 30, 2018

CONTROLLING FUTURE DEVELOPMENTS OF PROPERTY

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AKTESJOL 2017

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WAUMBE ACHIEVERS AWARDS 2017

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CAN I CLAIM MAINTENANCE FROM MY EX-SPOUSE AFTER THE DIVORCE?

 

In South Africa, there is a legal duty on one spouse to support the other pending divorce, or even after divorce, regardless of the marriage regime. The maintenance is usually paid in monthly instalments for a specific time period.

 

A common misconception is that spousal maintenance places an unfair burden on the spouse who must support the other financially even though they don’t share a marital bond anymore. This is especially apparent in divorce settlements where the financially weaker spouse already received 50% of the marital assets and still claim maintenance. This misconception is far from true as spousal maintenance assists in the rehabilitation of both spouses. It encourages a “clean break” divorce in which the parties may peacefully sever bonds.

 

SPOUSAL MAINTENANCE BY AGREEMENT

The legislation regulating spousal maintenance is section 7 of the Divorce Act 70 of 1979. The Divorce Act determine that spouses can agree to spousal maintenance prior to the final divorce order and this is normally done in terms of a settlement agreement or consent paper. The settlement agreement will be incorporated into the final divorce order and made an order of the court.  This order will determine the maintenance obligations of the parties.

 

SPOUSAL MAINTENANCE BY APPLICATION BY ONE SPOUSE

The Divorce Act also regulates instances when spouses do not agree on spousal maintenance and the court is then required to make a decision that is just and fair in respect of the payment of maintenance to one spouse. In making this decision the court has the discretion to make a maintenance order relating to the amount, period of payment and even if there should in fact be any maintenance order at all.  To make this decision the court takes various factors into account, namely:

  • the existing or prospective means or income of the party;
  • their respective earning capacities;
  • their individual financial needs and obligations;
  • the age of each spouse;
  • the duration of the marriage;
  • the standard of living of the Parties before the divorce;
  • their conduct as far as it may be relevant to the breakdown of the marriage;
  • any factor which the courts think should be considered.

 

The above factors are assessed together and each one is equally as important as the next.  Furthermore, the court’s discretion is solely based on the presented facts before the court and is decided on its own merits.

 

In the case of Venter v Venter, the court refused to grant a 57-year-old woman permanent maintenance and stated that “the idea that marriage ought to provide a woman with a “bread ticket” for life is on its way out…”. This indicates that the courts favour a “clean break” divorce and are very reluctant to grant permanent spousal maintenance.

 

Spousal maintenance after divorce is therefore rarely a permanent arrangement and should rather be seen as an interim solution relating to financial requirements.

 

SPOUSAL MAINTENANCE PENDING A DIVORCE ORDER

Should a spouse require urgent relief in the form of maintenance pending divorce proceedings, the spouse may bring an application in the High Court in terms of Rule 43 of Uniform Rules of the High Court or the Regional Magistrates Court in terms of Rule 58 of the Magistrates Court Rules. This will be interim relief, the only requirement will be that a summons must already have been issued and served.

 

VARIATION OF A MAINTENANCE COURT ORDER.

A spousal maintenance order made by the court is final, however, it may in certain circumstances be varied when a material change occurs to either spouse’s financial situation. This means that the amount the one spouse pays can be amended based on various reasons. An example of material changes would be a loss of income or a deduction of salary by the party paying maintenance.

 

A maintenance order is an order of the court and cannot be changed unilaterally by one party or even by agreement between the parties.  Spouses are also entitled to approach the maintenance court to have the spousal maintenance reduced or increased in the event that their financial position changes, once an order is already in place.   Failure to perform in terms of a maintenance order is a criminal offence and may have dire consequences for the defaulting party.

 

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