Bertus Preller, formerly head of the Family Law Department at KWJ Inc. Attorneys in Cape Town will be joining Abrahams and Gross Attorneys in Cape Town with effect, 6 September 2010. Bertus is a director and co-founder of Divorce Attorney (DA). He was admitted as an Attorney of the High Court in 1989. Prior to co-founding DA, Bertus was the head of the Family Law Department at KWJ Inc. Attorneys in Cape Town and Managing Director and co-founder of Van Wyk & Preller Attorneys in Bloemfontein, a director of Honey & Partners Attorneys in Cape Town and founder of technology companies SmartSurv Wireless, DigiWords, CellBook, eSplash and eLaw initiatives such as eDivorce, eWills and eTrust. Bertus was also a past Part Time Commissioner at the CCMA an Arbitrator and Mediator at various Bargaining Councils, an Appeals Authority for the South African Police Services and he acted in a number of high profile matters in all Courts in South Africa. Bertus also negotiated the contracts of rugby players on behalf of the SARFU Rugby unions and more recently advised a number of South African Book Publishers on the Google Book Settlement. Bertus matriculated at Grey College in Bloemfontein and graduated from the University of the Orange Free State in 1988 (cum laude - Criminal Procedure) he articled at Symington & De Kok Attorneys in Bloemfontein. Bertus has been recognized in the Publishing Industry as an expert on digital rights and technology law issues and specializes in Family Law issues.

Abrahams & Gross Inc was founded in 1935 in Cape Town, and is a well-established law firm, offering a range of legal services including family and matrimonial law. The Family Law Department deals with all issues of law affecting the family, and also specialises in agreements for permanent partners in same- and heterosexual relationships. They offer a high level of service and expertise, and an emphatic approach.

Abrahams & Gross Inc Family & Matrimonial Law services:

• Family Violence Interdicts
• Advice on Matrimonial Systems
• Antenuptial Contracts
• Variation of Matrimonial Systems and Postnuptial Agreements
• All areas of divorce, including facilitation and mediation, maintenance, custody and access disputes, adoption applications.

Abrahams & Gross Inc Contact Details:

Tel: +27 21 422-1323
Fax: +27 21 422-1406
Email: info@divorceattorney.co.za
Website: www.abgross.co.za

Physical Address:
Abrahams & Gross Inc
1st Floor, 56 Shortmarket Street,
Cape Town, 8000
Western Cape

Bertus can be contacted on: bertus@divorceattorney.co.za

(1) an interdict restraining the second and third respondents from proceeding with the sale in execution of the first respondent's registered one half undivided share in the property, and

(2) a declarator that he was the sole owner of the property (and that the first respondent was not vested with any interest in the property that could be the subject-matter of execution at the instance of any of her creditors). The High Court granted the application in the form of a rule nisi. On the return day it was contended for the applicant that:

(1) the effect of the divorce order and settlement agreement was to divest the first respondent of her right, title and interest in and to the property and to vest same in the applicant, with the result that the applicant had become the sole owner of the property. There was no need for the performance of any act in the Deeds Registry for registration of transfer in favour of the applicant, of the first respondent's one half undivided share; and

(2) the applicant lawfully acquired de jure ownership of the first respondent's rights in and to the property either immediately upon conclusion of the settlement agreement, alternatively, upon the grant of the decree of divorce.

The Court held that there was no merit in the applicant's contention. It was trite, both in terms of the common law and in terms of s 16 of the Deeds Registries Act 47 of 1937, that ownership of land could be conveyed by one person to another only by means of a deed of transfer executed or attested by the registrar, save as otherwise provided in the Act or in any other law.

The Court held, further, that the settlement agreement between the applicant and first respondent in the present matter merely had the effect of creating a contractual right in favour of the applicant for acquisition of the first respondent's one half undivided share in the property.

The derivative acquisition of ownership of property, or of any rights therein, required an act of traditio (ie delivery or transfer). In all instances where rights of ownership of immovable property could only be vested in a person by means of an act of traditio, the only legally recognised and effective method of accomplishing that was by registration of a deed of transfer in the Registry of Deeds.

The Court held, further, that there was also no merit in the applicant's second contention. The settlement agreement conferred no more than a contractual right in personam in favour of the applicant against the first respondent for transfer of ownership of the latter's rights in and to the property by registration or endorsement in terms of the Act and that since there was no act of traditio perfecting the applicant's 'acquisition' in the present matter, the applicant had not become vested with the first respondent's rights in rem in and to the property. The first respondent remained vested with ownership of a one half undivided share in the property as at the date on which such was placed under judicial attachment at the instance of the second respondent.

Thus in a divorce matter it is of utmost importance to "transfer" the share in the property to the other spouse formally through a conveyancer otherwise it may be attached by a creditor as if the parties were still married in community of property.

Compiled by Bertus Preller

Family Law Attorney

Contact Bertus at:

0835334428 or email: bertus@divorceattorney.co.za

Death Notice

The 'Death Notice'  is not the 'Death Certificate' obtained from Home Affairs. The form referred to here is a "Notification of Death" (cause of death) also known as a BI-1663 Medical Certificate.

• If a person dies in a hospital of natural causes, the doctor will issue a death notice. Many private hospitals don't have mortuary facilities, in those cases a funeral director/parlour needs to be contacted immediately to collect the deceased. State Hospitals generally have mortuary facilities; the body must remain there until a death notice is issued.
• If a person dies in hospital of unnatural causes, the body will need to be transferred to a state mortuary for a compulsory post mortem (autopsy). The state mortuary will then issue a death notice.
• If a person dies at home of natural causes, one should contact the doctor first. Provided the doctor is willing to issue a death notice one can contact a funeral director/parlour to transport the body to a mortuary. A death notice can be obtained from the deceased's doctor if the doctor had seen the deceased within 24 hours of their death or within a reasonable time whereby the doctor is assured of the cause of death. If the doctor is unwilling to sign the death notice a funeral service will arrange for a private autopsy to be performed to ascertain the cause of death. The death notice will then be issued by the pathologist at the mortuary where the autopsy was performed.

For those who have died of natural causes at home and do not require an autopsy there is a further requirement if they are to be cremated. A second doctor needs to examine the body to confirm that there is no reason why the body cannot be cremated. Both doctors need to sign cremation forms which are then handed to the medical referee at the crematorium who will then give the final permission for the cremation to take place.

• If a person dies at home of unnatural causes, one must contact the police. The police will organise removal of the body to a State Mortuary where a compulsory autopsy will be performed and a death notice will be issued.

Note: In all the above cases the body is to be identified by a relative or friend before the death notice can be issued.

Identifying the Deceased

Anyone who knew the deceased can do the identification, provided they take both their own and the deceased's identity books or passports to the mortuary when identifying. They will need to obtain a mortuary/body number from the mortuary staff.

Death Certificate

Firstly you will have to obtain a death certificate, this is vital in order to administer a deceased estate. The Births and Deaths Registration Act requires every death must be reported to the Department of Home Affairs. The death notice should be obtained from the hospital / doctor / pathologist and needs to be handed in at Home Affairs. Home Affairs will then issue a Death Certificate, normally approximately two weeks after you handed in the forms.

The Executor needs to take several copies of the Death Certificate to a police station along with the original, to be stamped and certified by the police. Every instruction given and transaction done on behalf of the deceased, e.g. closing accounts, etc, will need to be accompanied by a certified copy of the death certificate.

Finding out who the Excecutor is

If the deceased had a will, the Will normally nominates an individual or a financial institution to perform the function of the executor. If no executor is nominated or the nominated executor is unable or refuses to accept the task, or if the person dies intestate (without a Will), the Master of the High Court will appoint an executor, called an Executor Dative. Those who want to take on the role of the executor should apply to, and must convince the Master of the High Court why they should be appointed. The Master generally prefers an executor who stands to inherit from the estate, and the primary beneficiary is preferable. All beneficiaries of an estate are asked to consent to the new executor, if there is a dispute, the master may appoint joint executors.

If you find yourself nominated as the executor for your spouse's estate and are intimidated by all the legal processes you can approach a professional, such as an attorney or an accountant to assist you in administering the estate. Executors fee's are 3.5% of the gross value of the assets in the estate and 6% commission on interest which accrues after the date of the death. If you are the nominated executor it is possible to negotiate this fee with accountants and attorneys. All legal fees, executors fees, Master's fees, etc will be paid out of the estate.

Administering the Estate

The tasks outlined belowgenerally fall under the duties of the executor who may be a family member, a trusted friend or a financial institution.

Note: this is a basic guide for straightforward cases. Possible complications and unique situations are not covered here. If your situation is unusual in any way, taking legal advice is recommended.

• The executor first needs to obtain the Will and check on its validity, establish who the beneficiaries are and get a rough idea of the assets and liabilities of the estate. Gather items such as bank accounts, title deeds to properties, insurance policy documents and any other documents you can find that pertain to the financial affairs of the deceased.
• If a beneficiary is named in a life assurance policy, the proceeds can be paid directly to beneficiaries without having to go through the estate. This is an ideal vehicle for providing cash to dependants while the estate is being wound up.
• An inventory of assets and property is an official form that can be obtained from the office of the Master of the High Court or from legal stationers. The inventory should indicate whether total assets exceed R125 000. The surviving spouse or closest living blood relative residing in the district where the deceased lived must sign the inventory. If the assets total less than R125 000, the Master can shorten the procedure and allow the estate to be wound up in an informal, cost saving manner. The procedure in this instance is much simpler, in that the executor doesn't have to advertise for creditors and doesn't have to draw and submit a Liquidation and Distribution Account.
• An 'Acceptance of Trust' form is available at the Master's office and must be completed and signed in duplicate. The Master's office will forward a copy to the South African Revenue Service (SARS). In most cases the will in question would probably have exempted the executor from lodging security. Security is generally not required in cases where the executor is a parent, child or surviving spouse of the deceased. Where the Master requires security to ensure the honesty of the executor it is usually a bond which can be obtained from an insurance company. The amount of security required is at the discretion of the Master, who generally insists on security covering the value of the assets disclosed in the inventory.
• The executor needs to apply to the Master of the High Court to be formally appointed and granted the necessary powers to administer the estate. This can take up to six weeks, depending on which of the nine Masters' Offices in South Africa is involved. It is best to go in the morning, and take the following documents with you: The original will, (it is advisable to get a receipt when you hand it over). The death notice. An inventory. A certified copy of the death certificate. An acceptance of trust form, in duplicate. A next of kin affidavit. An affidavit that the estate has not been reported to another Master's office. (required by some). A list of creditors.

Different Masters offices have slightly different requirements, so it is advisable to enquire as to exactly what they require. Aside from the will, all of the above documents are available from the Masters offices.

• The Master of the High Court will grant 'Letters of Executorship' to those persons who have been authorised to deal with the estate and who have agreed to accept the job of winding up the estate. Copies of the ‘Letters of Executorship' will be needed by banks and insurance companies that may hold assets pertaining to the deceased as proof that the assets they hold will be passed on to the properly authorised representative of the deceased's estate.

What the Executor must do once appointed?

• Advertise the estate so that any creditors can become aware of the need to register their claims against the estate. Advertisements must be placed in the Government Gazette and a local newspaper where the deceased resided in the 12 months preceding death. Creditors have 30 days from the date of publication of the advertisement to lodge any claims against the estate.
• Take a look at the deceased's bank account or post, in order to find what monthly payments are being made. You will need to pay up and close these accounts, e.g. credit cards, petrol card, telephone accounts, DSTV, gym membership, clothing accounts, etc.
• Close the deceased's bank accounts and open up a cheque/current account called "estate late" followed by the deceased's name as soon as more than R100 has been received. All investments will be paid into this account and all creditors and beneficiaries will be paid from this account.
• Assets like the deceased's house may be sold, depending on what the beneficiaries want. The proceeds from the sale will go into the ‘Estate Account'. This will later be paid out to beneficiaries from the ‘Estate Account'.
• Give notice on shares, investments, annuities, policies, etc, that moneys owing to the deceased are to be paid into the ‘Estate Account'. If beneficiaries have been nominated in policies, they will bypass the estate and be transferred directly to the nominated beneficiary.
• The executor then needs to prepare the 'Liquidation and Distribution Account' (L&D account). This can take from six weeks to six months or even longer depending on the degree of difficulty of the estate. The L&D account includes all the assets and liabilities in the estate at the date of death. It also includes the income and expenditure incurred by the estate since the date of death. The net value of the estate is then the inheritance due to the beneficiaries. When a person dies it can trigger a capital gains tax event depending on the size of the estate, which requires expert tax knowledge to do the calculation. The executor then submits the L&D account together with supporting documents to the Master of the High Court. If the Master has queries, the executor is to respond within a certain time period. The executor submits the deceased's final tax return to SARS at the same time.
• Once the Master of the High Court has given his approval, the account must be advertised in the Government Gazette and in a local newspaper and made available for inspection for 21 days at the Master's office and at the Magistrates office in the district where the deceased lived. The heirs should have the opportunity to review the account before it is finally submitted to the master. If no objections are lodged against the liquidation & distribution account, the Master will confirm that the executor may distribute the assets to the beneficiaries.
• Before distributing the estate the executor must obtain a release from SARS. This will only be granted by SARS once they are satisfied that all outstanding taxes have been paid.
• Creditors must be paid before the residue of the estate can be distributed among heirs.
• After the account has been advertised, the executor prepares a cash statement and distributes the assets to heirs. It takes an average of eight months to three years to finalise an estate. The executor will also arrange for transfer of fixed property, e.g. a house that was in the deceased's name into the name of the person who inherited it. There will be no transfer duty, but the estate will pay conveyancing costs regardless of who inherits the property.
• Once the executor has provided the Master of the High Court with proof that the creditors have been paid and that the assets have been distributed, the Master signs off the estate and the executor's task is complete.

What happens if someone died without a Will?

The Master of the High Court may appoint an executor dative since no-one would have been nominated in a will. The executor's first duty is to locate the will if there is one. If a will cannot be found among personal papers, enquiries should be made at the deceased's lawyers, accountants, bank or insurance company. It may be in safe keeping with one of them. If it cannot be traced, even though relatives may be positive that one exists, the estate must be administered as if no will had been drawn up.

If one dies without a will, or if the will is found to be invalid, the estate is to be administered in terms of the Intestate Succession Act, Act 81 of 1987. These rules only apply if the deceased was domiciled in South Africa at the time of death. If the deceased was domiciled in another country, the laws of that country will apply, not the rules set out below.

About Intestate Succession

Intestate succession is based primarily on blood relationship, Illegitimacy shall not affect the capacity of a blood relation to inherit. An adopted child is considered a descendant of his adoptive parents. The following is an outline of how an intestate estate devolves:

• If the deceased is survived by a spouse or spouses, and has no living descendants, the spouse inherits the estate, if deceased was a husband in a polygamous marriage the surviving spouses will inherit in equal shares.
• If the deceased is survived by a descendant, but not by a spouse, the descendant shall inherit the estate.
• Where there is a living spouse or spouses and descendant/s, each spouse will inherit R125 000 or a child's share, whichever is greater, (this amount is fixed from time to time by the Minister of Justice). The children will get the balance of the estate, and if a child is deceased and has descendants, that child's portion will go to their surviving spouse and dependants.
• If the deceased leaves no spouse or descendants, but both parents are alive, the parents shall inherit the estate in equal shares.
• If the deceased has no surviving spouse or dependants but has only one surviving parent, the parent inherits half the estate and the descendants of the deceased parent the other half. If there are no such descendants, the surviving parent shall inherit the estate.
• If the deceased is not survived by spouse, descendant or parent but is survived by descendants of the deceased mother or father who are related to the deceased through the parents. One half of the estate divided equally among the mother's descendants and one half of the estate divided equally among the father's descendants.
• If the deceased is not survived by a spouse, descendant, parent or descendant of a parent, the other blood relations of the deceased who are related to him nearest in degree shall inherit the intestate estate in equal shares.
• Where there are no relatives, and the assets have not been claimed by a legitimate heir after 30 years, the estate is forfeited to the state.

How To Work Out A Childs Share

Example 1:

If a childs share is less than R125 000.00
If the value of the intestate estate is R350 000.00 and the deceased is survived by a spouse and 3 children.
A child's share amounts to R87 500.00
(R350 000 divided by 4, (3 children plus spouse)). As the child's share is less than R125 000.00 , the spouse will inherit R125 000.00 and each child will inherit R75 000.00. (R350 000.00 less R125 000.00 to spouse = R225 000 divided by 3 children = R75 000.00)

Example 2:

If a child's share is greater than R125 000.00
If the value of the estate is R800 000.00 and the deceased is survived by a spouse and three children then a childs share amounts to R200 000.00 (R800 000.00 divided by 4, (3 children plus spouse)). In this case, the child's share is greater than R125 000.00, so the spouse will inherit R200 000.00 and the children will also inherit R200 000.00 each.

Minors

If the deceased dies intestate and a minor inherits, such portion will be held by the Guardian's Fund at the Master of the High Court until the child reaches majority at 18 years of age.

Marriage in Community of Property

Where Intestate Succession applies in a case of marriage in community of property, one half of the estate belongs to the surviving spouse/s and will not devolve according to the rules of intestate succession.

Compiled by:

Bertus Preller

Family Law Attorney

bertus@divorceattorney.co.za

Do you have special interests within your area of business/expertise?

I have a great interest in disputes relating to children and blog quite often on issues pertaining to the New Children's Act. I believe that children are the future in this country and therefore it is vital that the interests of children be safeguarded in all aspects of life. I think this is also one of the great legacies that Nelson Mandela will leave behind ie how important it is to build the future by taking care of our children. I am also a tech junkie and one of my passions are to stay ahead in the digital revolution and in this regard I also consult on digital issues to a number of book publishers.

What do you love most about your field of interest and where is the future going?

Practicing Family Law is a sensitive issue and always an emotional rollercoaster for all parties involved. The ramifications of divorce or a custody application is like dropping a stone in a pool of water, the ripples never stops and spreads into other relationships as well, especially where children are involved. It is never a win-win situation, but seeing that parents in some matters really act in the best interests of their children is something that I envy, putting the emotions on the side and focusing on the best interests of the children. Seeing that co-parenting becomes more of a reality these days are also a step in the right direction and bring balance to situations that would otherwise seem unlikely. One thing I love, which might seem a bit unlikely given the fact that I am an attorney is seeing couples reconcile, I believe that 1/3 of all divorces should never take place.

Share some defining moments in your career.

My legal background is broad and I have been involved in a number of matters in all aspects of the law since I started practice, I have been involved in matters in all Courts in South Africa also in the Constitutional Court and Appellate Division. Some defining moments were being involved in negotiating the first employee contracts for professional rugby players in the 90's, being involved in more controversial issues as a young attorney in the first ever strike by police officials and also acting in the Andre Markgraaff racism scandal and a number of high profile criminal cases. A defining moment came when I pioneered an online internet do-it-yourself divorce and Wills platform and decided to focus all my attention on Family Law matters.

What are the challenges?

You have to be clinical, especially when you are a Family Law Attorney. In order to be successful you have to look at a case clinically. Like a doctor operating on a patient. You have to distance yourself from the emotional aspects. But there are times that you are touched by the hurt of the parties involved, especially when there are children involved.

Tell us about your family, hobbies and extra mural activities, or what is important to you in personal time

I am married to Liesl, the most beautiful woman on earth and we have a child of our own Luca, who is almost a year old. We have a rather large family, having two kids from a previous marriage Carl 20 and Jeane 15 and Liesl having two of her own Sebastian 7 and Isabella 6 is a full house as all the kids live with us. But, an awesome experience no matter how hectic it may sound. To spend quality time with my family and my wife is important to me. Life is actually so short and the time available is precious to all of us. I love deep sea fishing, diving and travelling

What inspires you?

Sebastian, Liesl's little boy is a Type 1 diabetic and was diagnosed at the age of 2, so having a special needs child in the family does pose a lot of challenges, but also give us so much joy. Sebastian is injected 6 times a day with insulin, but notwithstanding this is the SA u/7 Karate champion and an example of inspiration to us all that no matter your circumstances you can excel.

Tell us about someone in a mentorship/role model position that has taught, inspired and connected you to your purpose.

My father is a real example of someone who excelled in life, without money, keeping his feet always on the ground no matter what he has accomplished. He is one of the most likeable people I have ever met and also the most humble, always smiling no matter how bad a situation might be. I wish I could spend another 70 years with him. My mother and father have been married for almost 50 years and are still in love and inseparable, this is something special that you don't find a lot these days.

"My favourite quote..."

"Nothing great in the world has been accomplished without passion"

What is your personal message to the women of the world?

One of the biggest obstacles is the advice which they sometimes obtain from many other sources, other than the professionals that they consult during the divorce process, which may not be knowledgeable. I sometimes have clients that tell me about things they have read and friends that they have spoken to about their divorce and what did I make of that information. One can never compare your divorce to your neighbour's divorce; the facts are mostly not the same.
A divorce should be treated as a business deal because for women, this will be the biggest business deal of their lives. They need to know the financial ramifications of the decisions that they are making in the divorce and for their future. Also, never use the children in the divorce process to gain an advantage over your spouse. Don't fight over the children. So many fights over children are really about the spouse's issues with each other. The children need to know that although the parents are getting divorced, they both love them and will get to be with both parents. What parents need to remember is that they will be parenting for the rest of their lives. They should never want their children to have to be in a position of picking one parent over the other.

Do you share your expertise or offer any of the following: professional speaking, editorial contributions to journals, teaching, mentorship, consultations?

I blog a lot about Family Law issues and my passion is to educate people on issues pertaining to Family Law. I am the resident Health24.com Family Law expert and offer weekly advice free of charge on all matters related to Family Law.

Do you have a Female Role Model or a woman you believe inspires through her example in your field of interest? If not reflect on what women bring as role models in general.

My wife Liesl, brings calmness to my situation. She has shown me that no matter what life may throw your way, that determination to succeed builds that special kind of character that gets you ultimately to the finishing line. Liesl nearly lost her life when our son Luca was born, yet her faith and calmness pulled her through. Being composed under the worst possible circumstances is a trait that not many of us have, something that I admire in her.

Do you have a Male Role Model that inspires through his example in your field of interest?

If not please reflect on what values Male Role Models bring to our world.

Advocate Jeremy Gauntlet SC, although we have not worked that much together is probably one of the most intellectual people that I ever came across. I called him the other day and requested advice in a matter; being one of the busiest Advocates in South Africa he still made time to guide me in the right direction. Nelson Mandela is probably one of the best examples of our time on how one should strive to make our world a better place and he was an attorney! I had the privilege to meet him once in my life and the note he wrote for me in his biography is now framed and occupies a special place in my study.

Where/what are your favourite places, activities and "must do items that you personally recommend for people visiting SA

Robben Island, Table mountain, the Cape Vineyards, the west coast and the Kruger National Park.

What is the best piece of advice you have received?

Keep your feet on the ground and reach for the stars - David Greshamp

What is your secret to success

Success is a marathon, not a sprint. Never give up. Don't let other people or things distract you. Always be positive. Think Success, not Failure.

Literature/reading pieces/books that have had a wealth of influence on your business and lifestyle.

I really enjoy reading the Bible, there is so much truth in the Bible that we can apply in our daily lives, no matter whether you are a believer or not.

Is there such a thing as balance?

Someone once said that you should replace the word "balance" with "choice" and see that you need to choose your priorities and then choose to do those things that support your priorities. You're not supposed to balance it all. You're supposed to pick and choose and when you do, be really engaged and fully drinking in the beauty of the moment.

What do you think is the key ingredient to make our world a better place?

Live so that when your children think of fairness and integrity, they think of you.

Contact Bertus on: bertus@divorceattorney.co.za or visit http://www.divorceattorney.co.za

Interviewed by www.spice4life.co.za

Firstly, the divorce must be uncontested and the parties must agree on the split of the assets. Secondly the parties must consent to the jurisdiction of, for instance the Cape Town Family Court.

Normally a consent clause will be included in the divorce settlement agreement whereby both parties consent to the Western Cape having jurisdiction in the divorce matter. A Summons then need to be served on the Defendant, but if the Defendant lives in another country and such process to serve the Summons in Australia can be costly the Defendant can agree that the Summons be served on him at the office of an Attorney in South Africa.

The Plaintiff can then fly to South Africa for the hearing. Jurisdiction can be problematic at times, particularly when the parties live in a different country. It is therefore important to use an attorney who is experienced in the area of jurisdiction and knows how it works.

Bertus Preller

KWJ Inc.

www.divorceattorney.co.za

bertus@divorceattorney.co.za

People don't usually want to think about death, but as a parent, what will happen to your children after you passed away? As a parent you will have to take steps now to secure your children's future care.

The following scenario happens all too often. Judy and Mark divorced after having three children. Mark had an affair and left Judy for someone else. Judy is now in a relationship with Ben and she and the children lived with Ben for the past 5 years in Cape Town. Ben is an awesome father and has taken care of the children as if they were his own. Mark paid little maintenance and did not show much interest in the children for the past few years. Judy then passes away. Within a few weeks after her death Mark appeared on the scene demanding that children live with him and his new wife in Johannesburg. Ben is devastated as loves the children and the children are devastated too.

The parents of a child who are married or have been married to each other are normally both the co-guardians of the child, unless a court order specifies otherwise or in the case of parents who never married, the biological father if he acquired parental rights and responsibilities and guardianship. In case of death the surviving parent normally becomes the sole natural guardian of the child.

Section 27 of the Children's Act specifies that a parent who is the sole guardian of a child may appoint a fit and proper person as guardian of the child in the event of death of that parent. Such an appointment must be contained in a Will made by the parent. So if one parent has sole care or guardianship then that parent can appoint a fit and proper person to take care of the children when he/she dies. If one parent has only been granted care (opposed to sole care) the ex-spouse automatically obtains care on the death of the other parent. So in the event that you nominate another person where you don't have sole care or guardianship your ex-spouse will have to consent or give up on his/her rights. If your ex-spouse is the co-holder then he will automatically gain care and guardianship in case of your death. If a parent is unfit the court may well award guardianship to someone else, it has to be noted that all decisions in relation to a child must be made in the best interests of the child and the court will consider a number of facts, such as the commitment the person applying has shown towards the child, the extent in which he contributed to the child's expenses, the relationship between the child and that person whose rights and responsibilities are being challenged and any other factor that the court will deem necessary to take into in account.

So, any wish you have as to whom should be taking care of your child on your death should be contained in your Will, providing that you have sole care and guardianship, otherwise it will not be enforceable.

Care in terms of the Act means, providing the child with a suitable place to live, offering living conditions that are conducive to the child's health, well-being and development and the necessary financial support, safeguarding and promoting the well-being of the child, protecting the child from maltreatment, abuse, neglect, degradation, discrimination, exploitation and any other physical, emotional or moral harm or hazards, guiding, directing and securing the child's education and upbringing, including religious and cultural education and upbringing, in a manner appropriate to the child's age, maturity and stage of development, guiding, advising and assisting the child in decisions to be taken by the child in a manner appropriate to the child's age, maturity and stage of development, the behaviour of the child in a humane manner, maintaining a sound relationship with the child, accommodating any special needs that the child may have and generally, ensuring that the best interests of the child is the paramount concern in all matters affecting the child.

In terms of Section 31 of the Children's Act, before a person holding parental responsibilities and rights in respect of a child takes any decision involving the child, such as the assignment of guardianship or care in respect of the child to another person that person must give due consideration to any views and wishes expressed by the child, bearing in mind the child's age, maturity and stage of development. There is no specific age set in terms of the Act, but the older and more mature the child the more their wishes will be taken into account.

Section 10 of the Act also stipulates that every child that is of such an age, maturity and stage of development as to be able to participate in any matter concerning that child has the right to participate in an appropriate way and views expressed by the child must be given due consideration.

If you die and the other parent is also no longer alive the grandparents on either side may apply for the child's care or guardianship.

Compiled by Bertus Preller

Family Law Attorney

KWJ Inc.

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Getroude gades kan hul huwelike deur egskeiding ontbind. Dit beëindig die huwelik en geskeide partye kan weer wettig daarna trou.
Die loop van die egskeidingsproses sal afhang daarvan of die huwelik 'n burgerlike huwelik of 'n gebruiklike huwelik is. Burgerlike huwelike word ontbind in ooreenstemming met die reëls en prosedures vervat in ons land se Egskeidingswet. Huwelike wat kragtens die Afrika Gewoontereg aangegaan word, moet in ooreenstemming met die burgerlike reg ontbind, maar sommige van die gevolge word deur sodanige gebruike en tradisies bepaal. Moslem en Hindoe huwelike word kragtens die plegtighede en rituele van die betrokke gelowe ontbind.

Daar is 'n aantal aangeleenthede wat by 'n egskeiding voorkom en welke aandag moet geneiet, naamlik:

• toesig en beheer oor die kinders
• toegang tot die kinders
• onderhoud
• verdeling van eiendom
• Onderhoud vir die gade

TOESIG EN BEHEER OOR DIE KINDERS

Voordat ‘n hof 'n egskeidingsbevel sal toestaan, moet daar besluit word wie na die kinders gaan omsien en wie die primere sorg oor die kinders sal verkry. Die ouers kan 'n reëling tref of die hof kan besluit. Die belangrikste oorweging wanneer daar besluit word oor watter ouer toesig die primere sorg van die kinders sal verkry, is die beste belang beginsel van die kinder wat in Artikel 7 van die Kinderwet saamgevat is. Die Gesinsadvokaat by die hof kan helpgewoonlik om te bepaal watter ouer die beste in staat is om die primere sorg oor die kinders sal verkry en kan, indien nodig, die kinders in die hof verteenwoordig. Indien die egskeiding uitgerek is, byvoorbeeld wanneer die partye nie ooreen kan stem nie, kan 'n tussentydse versorgingsbevel uitgereik word waarin uiteengesit word wie na die kinders sal omsien onderwyl die egskeiding afgehandel word, dit geskied gewoonlik by wyse van ‘n Reel 43 aansoek.

In Hindoe, Afrika en Moslem gebruiklike huwelike kry die vrou gewoonlik beheer en toesig oor die kinders. Ooreenkomstig Afrika gewoontereg bly die vader gewoonlik die kinders se natuurlike voog. Kinders wat uit Hindoe en Moslem huwelike gebore is, word as buite-egtelik beskou en gevolglik is die moeder ook die natuurlike voog. In alle gevalle het die vader steeds 'n plig om die kinders te onderhou.

TOEGANG TOT DIE KINDERS

Die ouer wat nie die primere sorg kry nie, sal gewoonlik nog hulle kinders wil sien. Dit is dus nodig dat daar ooreengekom moet word wanneer, waar en hoe hierdie ouer toegang tot die kinders kan kry. As dit nie in die beste belang van die kinders is dat die ander ouer toegangsregte het nie, kan die hof toegang beperk.

ONDERHOUD

Wanneer 'n paartjie skei, is die een gade dikwels in 'n beter finansiële posisie as die ander. Die gade wat toesig en beheer oor die kinders verkry, sal ook uitgawes hê wat die ander ouer nie het nie. Die hof sal dan 'n onderhoudsbevel uitreik wat vereis dat onderhoud vir die kinders en, na gelang van omstandighede, vir die ander party betaal moet word.

Onderhoud vir die kinders word aan die ouer betaal wat toesig en beheer gekry het (maar dit is belangrik om te onthou dat hierdie reg die kind s'n en nie die ouer s'n is nie). Alle ouers het 'n plig om hul kinders te onderhou, insluitend kinders wat buite-egtelik is.
Indien daar probleme met die onderhoud is nadat die egskeiding deur is, kan hierdie probleme na die Onderhoudsbeampte by die landdroshof geneem word.

Of die een party vir die onderhoud of ondersteuning van die ander party aanspreeklik gaan wees, sal van die omstandighede afhang. Indien die partye nie ooreen kan kom oor hoeveel betaal moet word nie, sal die hof besluit.
Omdat Hindoe en Moslem huwelike nie ten volle as wettige huwelike erken word nie, het die vrou geen regstatus om onderhoud na die egskeiding te eis nie.

VERDELING VAN EIENDOM

Hoe die gesinseiendom verdeel gaan word hang af van watter eiendomstelsel die gades aangeneem het toe hulle in die huwelik getree het. Dit sal gewoonlik in die huweliksvoorwaarde-ooreenkoms of HVK uiteengesit word en, as daar geen HVK is nie, sal dit deur die wet bepaal word.

Die verstekregstandpunt is dat burgerlike huwelike binne gemeenskap van goedere met aanwas is. Dit beteken dat alles wat die gades besit, gedeel word met die insluiting van eiendom en skuld. Aanwas beteken dat alles wat hulle verdien of gekoop het nadat hulle getroud is, ook deel word van die gesamentlike boedel.

In geval van egskeiding, word die gedeelde eiendom gelyk tussen die gades verdeel. Enige skuld word ook gedeel.

As die gades ‘n HVK aangaan, kan hulle besluit om te trou:

• buite gemeenskap van goedere sonder aanwas;
• buite gemeenskap van goedere met aanwas.

Indien die huwelik buite gemeenskap van goedere sonder aanwas is, hou elke persoon sy/haar eie eiendom van voor die huwelik en hou wat hulle ook al gedurende die huwelik verdien of bekom het.
Indien die huwelik buite gemeenskap van goedere met aanwas is, hou elke persoon sy/haar eiendom van voor die huwelik, maar alles wat gedurende die huwelik bymekaargemaak is, word gedeel. Sommige goed soos erflatings of geskenke word nie ingesluit nie.

VOORSKRIFTE:

• Ontbinding van 'n burgerlike huwelik
• Ontbinding van 'n huwelik kragtens afrika gewoontereg
• Ontbinding van 'n huwelik ooreenkomstig die moslem of hindoe gelowe

ONTBINDING VAN 'n BURGERLIKE HUWELIK

'n Burgerlike huwelik moet deur 'n hof ontbind word.

Gronde vir egskeiding

‘n Gade kan slegs 'n egskeiding bekom indien hy/sy aan die hof kan bewys dat die huwelik "onherstelbaar verbrokkel" het of dat een van die gades sielsiek of voortdurend bewusteloos is.

Onherstelbare verbrokkeling beteken dat die gades nie langer saam kan leef nie en dat daar geen redelike kans is dat hulle hul geskille sal kan bylê nie. Stawing hiervan kan bewyse insluit wat aandui dat:

• Die paartjie 'n ruk lank nie saam gebly het nie.
• Een maat die ander bedrieg het;
• Een maat die ander verlaat het;
• Een maat die ander mishandel het;
• Die paartjie mekaar nie langer lief het nie.

‘n Gade kan 'n egskeiding verkry indien die ander gade vir minstens twee jaar in 'n inrigting vir sielsiekes is en dokters van mening is dat hy/sy nooit gaan herstel nie.

‘n Gade kan 'n egskeiding kry indien die ander gade vir minstens ses maande nie by sy/haar bewussyn is nie en dokters van mening is dat hy/sy nooit gaan herstel nie.

Die egskeidingsproses

Indien ‘n Gade die hof om 'n egskeiding wil vra, moet ‘n Gade 'n dagvaarding voorberei met die volgende inligting:

• Wie die primere sorg oor die kinders gaan verkry
• Hoe die ouer wat nie primere sorg het nie, toegang tot die kinders gaan verkry
• Wie onderhoud gaan ontvang, hoeveel dit sal beloop en hoe en wanneer dit betaal sal word
• Hoe u eiendom verdeel gaan word

Indien die gades 'n skikkingsooreenkoms kan bereik voordat die dagvaarding uitgereik word, sal dit die proses baie vinniger en makliker maak. Indien die gades 'n ooreenkoms bereik, moet dit dit op skrif gestel en onderteken word. Die toestemmingsakte moet dan by die dagvaarding vir 'n egskeiding aangeheg word.

'n Verhoordatum sal bepaal word. Ten tye van hierdie verhoor sal die regter vrae vra om die inligting in die dagvaarding te bevestig. Wanneer alles afgehandel is, sal 'n egskeidingsbevel toegestaan word. Indien u die Gesinshof in stede van 'n Hooggeregshof gebruik, mag u egskeiding vinniger en goedkoper afgehandel word.

ONTBINDING VAN 'n HUWELIK KRAGTENS AFRIKA GEWOONTEREG

Gebruiklike huwelike stem ooreen met burgerlike huwelike in soverre 'n hof 'n egskeidingsbevel moet uitreik en die egskeiding slegs toegestaan sal word indien daar gronde vir 'n egskeiding is (dit wil sê onherroeplike verbrokkeling, sielsiekte of volgehoue bewusteloosheid).

Die partye kan oor die bepalings van die egskeiding besluit en die regter sal dan die toepaslike bevele ten opsigte van beheer en toesig en onderhoud uitreik. Indien die hof oor hierdie aangeleenthede moet besluit, sal dit enige reëlings in ag neem wat kragtens gewoontereg gemaak is.

Daar kan van die vrou se familie verwag word om die hele of 'n deel of van die lobola aan die man se familie terug te gee, tensy die man in die openbaar sy vrou sonder hoegenaamd enige rede verwerp het.

ONTBINDING VAN 'n HUWELIK OOREENKOMSTIG DIE MOSLEM OF HINDOE GELOWE

Indien 'n man en 'n vrou deur 'n imam in die Moslem geloof of 'n priester in die Hindoe geloof in die huwelik bevestig is, is hulle kragtens die burgerlike reg nie getroud nie. Hulle kan dan skei sonder om na 'n hof te gaan, maar hulle moet die reëls van hulle geloof nakom.

WAT STAAN ‘n PARTY TE DOEN WANNEER HY/SY WIL SKEI

Eerstens kan jy besluit om ‘n prokureur te gaan sien. As die egskeiding onbestrede is, met ander woorde waar die partye kan ooreenkom om te skik sal die koste tussen R 4000 - R 20 000 wees. Die gades kan egter gebruik maak van ‘n aanlyn egskeidingsdiens soos eDivorce, sien http://www.edivorce.co.za en die fooi hiervoor beloop R 950.

The average cost of an uncontested divorce in South Africa can be anything between R 4 000 to R 20 000.

So why is it so expensive?

The bulk of the money, predictably enough, goes straight to your attorney or advocate. In the USA alone, Matrimonial law work is currently a staggering $28 billion-a-year industry.

The simplest and the cheapest way of handling divorce proceedings are to do all the negotiating and paperwork on your own. The internet has changed how we do things these days and booking a flight or accommodation is so much easier, also obtaining legal assistance. A Web site like eDivorce located at http://www.edivorce.co.za offers an array of information and a DIY Divorce service to assist you to conclude your own Divorce for a mere R 950. If your finances are relatively simple and you and your spouse can reach an agreement on the care and contact arrangements of the children, this may be an attractive option.

Another inexpensive option for those whose divorces are relatively amicable is mediation. During mediation, the couple hire a mediator trained in conflict resolution and family law (and often, but not always, a lawyer) to oversee their negotiations.  But comparing the cost of mediation with that of a service like eDivorce is no comparison.

So if you want a cheap alternative eDivorce is easy, fast and affordable. The documents are generated fast, within 24 hours and depending which plan you opt for your divorce can be done in a mere 3 weeks.

For further information contact eDivorce on info@edivorce.co.za or call the 24-hour hotline on 0835334428.