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Filter: Divorce
Can you stop your spouse from sharing in your pension fund after divorce?

28 March 2023,  Chang-Lin Dirks

Can a spouse married in community of property at divorce claim that the other spouse forfeits their right to share... in their pension?

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1096
Article
Is an agreement between spouses contrary to the ANC valid?

10 January 2023

Can spouses conclude an agreement which is contrary to their antenuptial contract and which is valid and enforceable?

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1291
Article
Can you claim maintenance for your adult children?

15 September 2022

It has been a well held view in our law that a parent cannot claim maintenance for an adult dependent... child from their divorced spouse. But is this still the case or has a recent Supreme Court of Appeal finding changed the position?

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1679
Article
Will trust assets form part of your estate at divorce?

15 September 2022

Just before a couple married with the accrual system finalised their divorce, the husband created a trust and transferred money... and property to the trust. The result is the husband’s estate is considerably reduced when it comes to the accrual calculation. Is this acceptable and does it mean his estate is reduced, or can his wife claim that these assets transferred to a separate trust be included in the calculation?

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1984
Article
Victory as Muslim marriages are now recognised in South Africa

27 July 2022

Final victory was achieved recently when the Constitutional Court confirmed the SCA’s order of constitutional invalidity in that the Marriage... Act as well as the Divorce Act are declared to be inconsistent with the Constitution in that they fail to recognise marriages solemnised in accordance with Sharia law if they have not been registered as civil marriages.  

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2253
Article
The huge implications new court ruling has for marriage and divorce in South Africa

17 May 2022,  Ilze Strydom

A new High Court judgment has far-reaching implications for parties getting divorced and married out of community of property in... South Africa. The effect will be that all parties married out of community of property without inclusion of the accrual system will be able to ask a court for an order for the redistribution of assets, if the necessary requirements are met, regardless of when the marriage was entered into.

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4148
Blog
Can you sequestrate an ex-spouse for failing to pay maintenance?

14 September 2021

My ex-husband is required to pay maintenance every month in terms of our divorce settlement. He has stopped paying, saying... he can’t afford it anymore and is now considerably in arrears. I know he has a lot of financial assets that can cover what he owes me, but he just says he can’t liquidate those now as he will lose money. Can I have him sequestrated so he can pay up?

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947
Article
Further levelling of the playing field with the new Recognition of Customary Marriages Amendment Act

14 July 2021

My mother is a black woman who has been married since the early 1970’s to my father in accordance with... customary law. They have never concluded a civil marriage, and my mother has also been our home provider while my father worked. Their marriage has become strained over the last couple of years, and I’m worried about my mother, should my father decide to divorce her. What are her marital rights?

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874
Article
When do maintenance obligations prescribe?

20 May 2021

My ex-husband has for some time now not paid his maintenance as per the court order. Because I had a... job and was earning a basic income, I just left it as I didn’t want the hassle of trying to get him to pay. Now I’ve been retrenched and have asked him to pay his outstanding maintenance, but he refuses and says his attorney told him that his obligation to pay has prescribed. Surely this can’t be right?

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909
Article
Can your ex-spouse circulate your private information?

10 November 2020

My ex-husband still has access to our shared cloud account. Unbeknown to me this meant he could see all my... back-ups of messages, photos and other personal information. Our divorce did not end well and he is now sharing private and personal information of me with third parties to embarrass me and to try and portray me as a bad parent. What can I do to stop him?

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793
Article
Fighting for a child's best interest once a parent passes away

05 November 2020,  Ilze Strydom

Death is a topic not many wish to think or talk about, especially when it comes to the passing of... a parent or parents of minor children. The sad reality is that parents do at some point pass away, with their children then having to be cared for by someone else. Usually, although always extremely sad, the care of the children is not a problem as the surviving parent will continue with their care. The question however arises, what happens when the parents are no longer married or in a relationship and the primary care giver passes away and the relationship between the children and the surviving parent is not good, or the surviving parent is not in a position to care for the children?What many parents do, is to include a clause in their last will and testament awarding guardianship and care to someone other than the other surviving biological parent. But what weight does such a clause carry? The short answer is a lot, but without a court order confirming it, no weight at all.  South African law determines that the biological parents of a child are almost always automatically the guardians of the child and have the rights to care of the child. What follows is that when one parent passes away and the parents are no longer together when it happens, the other parent in most cases will be the first choice as the primary care taker of the child. However, this is not always in the best interest of the child and any person who has a material interest in the wellbeing of the child, may apply to court to obtain rights which can include guardianship and primary care. When the deceased, in their will, nominates a person as the guardian or care taker at their passing, that person will not automatically acquire the rights envisaged by the deceased and must approach a court to vest these rights, should it be in the child’s best interest. The wishes of the parent who passed and was the primary care taker of the child, will obviously carry a lot of weight when the decision of where the child will live and who will be the child’s guardian is concerned, but it is not the determining factor. The best interest of the child is.The best interest of the child will include factors such as who will be best suited to cater to the child’s emotional, spiritual and educational needs, with whom does the child feel safe and secure, what is the relationship between the child and the person applying for guardianship or care and how will the placement affect the other parents’ rights. It is advisable that parents include the “guardianship clause” in a will, as this will be helpful to any party who has the interest of a child at heart, in the event of that person not being the child’s biological parent and at the passing of the primary care taker.Any person who is faced with the unfortunate situation of having to deal with the care of child at a parent's passing, is encouraged to consult a family law attorney to assist them in the application to court, so as to ensure that the child’s best interest is served. 

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Blog
Pending divorce and evicting your abusive partner

12 October 2020

My husband and I are busy getting a divorce. We are currently still living under the same roof, but my... husband insults me and is quite abusive in front of our children. We bought the house together but I don’t want him living there. Is there any way I can force him to move out before we are divorced?

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Article

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