Legal Advice

Children's Act

The Children's Act

The Children's Act 38 of 2005 has influenced not only the rights of children and parents, but also the way in which any disputes in this area are dealt with in practice. Our courts have also had to move away from certain traditional prejudices, and embrace the new approach to these legal proceedings set out by the Act.

How does a biological father of a child who was never married to the child?s mother ensure that these rights are afforded him? What does the mother of this child do if she wants to relocate? If the parents can reach an agreement, can they draw up an agreement and if so what should it contain? How can the agreement be enforced?

What happens where a child resides with a grandparent and not the father or mother? Who is the legal guardian of the child? We live in times where less parents of a child are married, but instead live together. What happens if this relationship ends, as the parents don?t need to get a divorce?

These are just some of the queries we can assist you with. You are welcome to contact us if you have any questions in this regard.

Pension Fund

Claims to a Spouse’s Pension Fund

Frequently people are not aware that by law they qualify to receive payment from a spouse’s pension fund in a divorce matter. Especially where they were married in community of property and the joint estate was divided equally between the parties. Section 1 of the Divorce Act 70 of 1979 clearly states that a pension fund is deemed part of a joint estate for purposes of the divorce. This confusion is even more true in cases where the pension fund in question is the Government Employees Pension Fund (GEPF) as the GEPF is governed by a different act than other Pension Funds.

Previously awards such as these were made in divorce orders, but the payment thereof was only enforceable once the member of the pension fund retired was retrenched or died. Now the payment is enforceable once the divorce order is granted. But often the pension fund confuses the entitled person to such an extent that they give up on the quest to receive these payments, which often run in the region of hundreds of thousands of rand.

If you are unsure of your rights, don’t hesitate contacting us.

Will and Testament

Will and Testament

One of the most important documents any person should have is a will. This document specifies how you wish all that you own to be distributed after your death. Not having a legal and up to date will can end up costing your estate or alternatively your beneficiaries thousands of rands in court applications and civil litigation.

For example: A husband dies leaving behind a wife and 2 children. His estate consists of a house, a car, furniture and some investments. His will states that 50% of his estate goes to his wife and the other 50% is divided between his 2 children. This seems simple enough. But what if his children are under the age of 18? Their share in the property can not be mortgaged or sold without permission from the Master of the High Court (if the value is less than R100 000) or the High Court (if the value is more than R100 000). Everything the children inherit has to be held in trust. Did the will provide for such a trust, if not their inheritances will have to be converted into cash and deposited for their credit in the Guardian’s Fund of the Master of the High Court.

Many people have misconceived ideas about how the process works, and about when claims against a deceased estate are established. Often people are unaware about the costs involved in the administration of their estate and do not make sufficient provision for this in their estate planning. The appointment of a dependable executor in your estate is another area which requires serious attention.

Given the amount of new legislation promulgated annually and the number of contracts, consent forms and other legally binding documents people encounter daily, it is vital that a legal opinion is sought prior to signing such documents. It might end up saving you thousands of rands in unnecessary court cases and litigation.