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Partners in a permanent life partnership could now enjoy the same benefits as spouses when it comes to intestate succession.

  The High Court in Cape Town recently decided a matter where a surviving partner, in a permanent life partnership, sought to declare certain sections of the Intestate Succession Act 18 of 1987 and Maintenance of Surviving Spouses Act 27 1990 unconstitutional.   In Bwanya v Master of the High Court and others 2020 (12) BCLR 1446 (WCC) the Applicant alleged that she and the deceased had been partners in a permanent opposite-sex life partnership, with the same or similar characteristics as a marriage, in which they had undertaken reciprocal duties of support and had committed themselves to marrying each other.  The deceased passed without leaving a valid will. The Applicant accordingly claimed against the estate and sought to be recognized as an heir in terms of the Intestate Succession Act. She further also sought maintenance from the estate in terms of the Maintenance of Surviving Spouses Act.   The executor rejected the Applicants claims on the basis that the aforementioned acts does
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Maintenance: Who is legally liable to maintain who?

According to South Africa law, particularly the common law, both parents (whether in a relationship or not) are obligated to financially support their children.   While this article will only discuss the maintenance of children, it is also important to note that other parties may be legally liable to pay maintenance. In some instances, grandparents are legally liable to maintain their grandchildren if their children, that is to say the grandchildren’s parents, are unable to maintain the grandchildren. Again, this is only if the grandparents are financially able to maintain their grandchildren.   Husbands and wives are also legally liable to maintain each other whilst they are married and, if the divorce court makes an order for spousal maintenance then there will also be a legal obligation to maintain an ex-spouse after the divorce.   Lastly, children may be liable to maintain their parents. This is only if the parents can prove that they are in need of maintenance and that the child o
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The divorce procedure made easy.

  Following our previous article, Understanding the divorce procedure , we would now like to guide you through the steps you need to take to do your own divorce. Please note that this a very basic guide as there are many different permutations with regards to divorces and we are available to assist you at any point with further legal advice.   In order to start your divorce procedure, you will first need to draft a divorce summons. A divorce summons is a formal notification that a divorce is being requested and the terms of the divorce. Various examples of divorce summons can be obtained on the internet or from the courts. The content of the summons is very important and should be carefully thought through.   If there are minor children involved, you will need to complete an Annexure “A” form, which can be obtained on the internet or from the courts. This form needs to be commissioned by a commissioner of oaths and once completed it must be attached to your summons, before the summons
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Understanding and drafting your own Will.

In very basic terms, a Will refers to a document in which a person sets out what should happen to their estate when they die , the relevant law is the law of succession . Having a Will is one of the most important things you can do for yourself and your loved ones and without one, the legal system will decide how your estate will be distributed.   In this article, we will provide you with the information you need to draft your own Will. If you need a more detailed explanation of the Law of Succession, please c ontact us.   In South African law, anybody who is at least 16 years of age (who is mentally capable of appreciating the nature and effect of a Will) can draft their own Will. It is not necessary to have a Will drafted by an expert, unless you have a complicated estate and need assistance with p lanning and management. In this instance, we always advise getting general advice and the assistance from an experienced attorney.   Before you start drafting your Will, it is important to
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What is the accrual system and how is it calculated?

In our previous blog post, “Understanding the Divorce procedure” we discussed that how you are married, whether in community of property, out of community of property without the accrual or out of community of property with the accrual, is an important factor to take into consideration when applying for or going through a divorce. In this blog post, we will be sharing a basic overview of what the accrual system is and how it is calculated.   In basic terms, the accrual refers to the growth in the value of your estate from the date of your marriage until the date of the end of your marriage (whether by divorce or by death of either spouse). It was adopted into our legal system in 1984, by way of the Matrimonial Property Act, and since then every marriage entered into out of community of property is subject to the accrual system – unless it has been expressly excluded in your ante-nuptial contract (ANC).   In this marriage system, spouses share only in the profits that accumulated during
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Understanding the Divorce Procedure

There is no denying that recent events, especially with regards to the Covid-19 pandemic, have had a huge impact on many aspects of our personal lives – and marriages and relationships have been no different. According to recent stats published on iol.co.za, “there has been a 20 percent increase in divorce applications in South Africa since level 4 of the national lockdown”. A divorce is never easy and involves many steps and procedures. Below we share a basic understanding of the divorce process, in a South African context.   The first thing to note is that all divorces are different and that there are many different factors which influence how a divorce proceeds. How you are married, whether in community of property, out of community of property without the accrual or out of community of property with the accrual, are important factors to take into consideration.   Married in community of property:   This means that both estates are joined together in equal and undivided shares. Gett
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THE EFFECT OF YOUR MARITAL REGIME ON TRANSACTIONS WITH THIRD PARTIES

Court cases discussed in this article: -        Broodie N.O. v Maposa and Others 2018 (3) SA 129 (WCC) [The court of first instance] & -        Marais N.O. and Another v Maposa and Others (642/2018) [2020] zasca 23 (25 March 2020)   [The court of Appeal] When entering into any form of a financial transaction with someone who is married in community of property, that person’s spouse’s consent may also be required for the business contract to be valid, binding and enforceable.  But what does this mean and is there a legal duty to investigate as to what the marital status of the other person is?    These questions were asked and answered in the above-mentioned two court cases. In this article I will explain what the respective Judges decided on these issues. Broodie N.O. v Maposa and Others The facts: Mrs Broodie married Mr Broodie in 1967 in community of property.  The marriage was a civil one in terms of the then Black Administration Act, 38 of 192
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