Family and Customary Matters - June 2015

What are the different marital regimes in South Africa?
  • You can be married in community of property or out of community of property, these are referred to as marital regimes.
  • If no ante-nuptial agreement has been entered into prior to the marriage, a marriage will automatically be in community of property. This means that all assets and debts of the spouses, at the date of the marriage, become part of a joint estate to which the spouses have equal shares to.
  • A marriage will be out of community of property where the spouses concluded an ante-nuptial agreement. A marriage out of community of property automatically includes the accrual system, unless excluded by an ante-nuptial contract.
  • If the accrual system is not applicable, the marriage will work on the principle of “what’s yours is yours, and what’s mine is mine.”
  • If the accrual system applies, the spouses must share in the growth of each of their estates during the marriage.
     
Is it possible to change a marital regime?
  • Yes, section 21 of the Matrimonial Property Act 88 of 1984 allows for spouses to change their marital regime, irrespective of whether they are married in or out of community of property. This can be done by application to the High Court.
  • The requirements that must be met for an application to change a marital regime are that:
    • there must be sound reasons for the proposed change; 
    • the application must be fully motivated in the application; 
    • the spouses’ creditors must be advised of the application; and 
    • the court must be satisfied that no other person will be negatively affected by the proposed change.
Can a parent claim maintenance from his/her children?
  • Yes, there is a duty between children and parents to maintain each other.
  • The general rule is that the maintenance must first be claimed from the nearest relatives, such as the person’s children.
  • This does not mean that every parent can go and claim maintenance from his/her children, s/he must prove that s/he has a need for the maintenance, as well as that the children have the ability to provide such maintenance.
  • A parent who wants to claim maintenance from his/her children must base such claim on basic needs, for example food, clothing and shelter.
Can maintenance be paid to an ex-spouse after a divorce?
  • Yes, but it must be claimed during divorce proceedings in a Divorce Court. As soon as the divorce has been finalised, an ex-spouse cannot go back and claim maintenance for him/herself.
  • In order to determine whether to grant a maintenance claim, the court will take the following into account, the:
    • financial means and earnings of both parties;
    • needs and obligations of both parties;
    • age of the person claiming the maintenance;
    • duration of the marriage;
    • standard of living during the marriage; and
    • parties’ fault to the breakdown of the marriage.

Estates Planning - September 2015

What is the purpose of the Master of the High Court?
  • The Master of the High Court is responsible to oversee the administration of deceased estates and trusts.
  • The Master of the High Court is also responsible for the registration of any type of trust.
  • All appointments of executors of a deceased estate and trustees of a trust must be approved by the Master of the High Court.
Who can be appointed as an executor of a deceased estate?
  • An executor (person responsible for the administration of a deceased estate) can be appointed in a Will of a person or, if there is no Will, be nominated by the close family of the deceased.
  • As a general rule, any person can be appointed as an executor with the following exceptions:
    • a minor child;
    • a mentally disabled person;
    • an unrehabilitated insolvent;
    • the Master of the High Court; or
    • any person who –
      • signed the Will as a witness;
      • signed on behalf of the testator; or
      • wrote the Will in his/her handwriting and on behalf of the testator.
What will happen if a person dies without a Will?
  • If a person dies without a Will, his/her belongings will be distributed according to the Intestate Succession Act 81 of 1987 (“the Act”).
  • The Act makes provision for a person’s belongings to be distributed to the his/her closest family in a specific order, for example:
    • Case study 1
      Shrek died without having any children and only leaves Fiona behind as his surviving spouse. 
    • In this instance, Fiona will inherit all of Shrek’s belongings in terms of the Act.
    • Case study 2
      What will the position be if Shrek was survived by two children and Fiona?
    • The Act provides that the surviving spouse will get an amount of R250 000.00 or a child’s share, whatever amount is the greatest. A child’s share is determined by dividing the deceased estate by the number of surviving children and spouse.
    • If Shrek’s deceases estate is valued at R300 00.00, a child’s share will be R100 000.00. When applying the Act to this case study, Fiona will get R250 000.00 and the children will get R25 000.00 each.
  • Taking the above case studies into account, a person who does not have a Will does not have any control over how his/her belongings must be distributed after his/her death.
What are the different types of trusts?
  • A trust is where the creator of the trust (“the founder”) transfers property to another person (“the trustee”) to be controlled on behalf of a third party (“the beneficiary”).
  • There are two types of trusts, namely a living trust and a testamentary trust.
  • A living trust comes into existence while the founder and the trustee is still alive. The terms and conditions of this type of trust will be set out in a document that is known as a trust deed and must be registered with the Master of the High Court.
  • A testamentary trust comes into existence after the death of the founder. This type of trust is created in a Will of the founder and will only be registered at the Master of the High Court after the death of the founder.
Who can be appointed as a trustee of a trust?
  • A trustee is the person who is responsible to control the property in the trust to the benefit of the beneficiaries. 
  • As a general rule, any person can be appointed as a trustee except for the following persons:
    • in the event of a testamentary trust, a person who signs the Will as a witness or who wrote the Will in his/her handwriting;
    • a minor child;
    • a mentally disabled person; or
    • the Master of the High Court.
  • A trustee will not be appointed if s/he is the only beneficiary in the trust.
  • It is a general practice to appoint 3 (three) trustees in order to provide for objective decision making by the trustees.

Criminal - June 2016

What is sexual abuse?
  • Sexual abuse is where a person has sexual relations with another person without his/her consent, such as rape or sexual violation.
  • Rape is where a person has sexual intercourse with another person without his/her consent.
  • Sexual violation includes the touching of another person’s private parts without his/her consent.
     
What is the National Register for Sex Offenders and the National Child Protection Register?
  • The National Register for Sex Offenders (“NRSO”) is a register where a person’s details will be listed if s/he was convicted (found guilty) of an offence of a sexual nature (for example, rape or a sexual violation) against a child or a mentally disabled person.
  • The National Child Protection Register (“NCPR”) is a register where all persons who are unsuitable to work with children will be listed. A person will be unsuitable to work with children if, for example, s/he was convicted of murder, rape or assault (with the intent to do grievous bodily harm) of a child.
  • Being listed in the NRSO and NCPR might lead to a person struggling to obtain employment in the future, for example, a teacher who will not be able to work with children due to being listed in the NCPR.


 

What is criminal capacity?
  • Criminal capacity refers to whether a person can be held responsible for his/her actions that led to his/her conviction of an offence.
  • A person can only be held responsible for his/her actions if s/he has the mental capacity to distinguish between right and wrong, for example, a person must understand that what s/he has done is wrong, but did it in anyway.
  • Persons that will not have criminal capacity are mentally disabled persons and children under a certain age.
When will a child have criminal capacity?
  • A child under the age of 10 years does not have criminal capacity.
  • A child between the ages of 10 to 14 years does not have criminal capacity, unless it can be proved otherwise. For example, an expert (such as a qualified social worker) can evaluate a child to establish whether s/he has criminal capacity.
  • All children above the age of 14 years are considered to have full criminal capacity and can be convicted of an offence and sentenced, which may include a period of imprisonment.
What is a school’s Code of Conduct?

A school’s Code of Conduct (“Code”) sets out the rules of the school and what disciplinary proceedings must be followed when a child or teacher breaches the Code.

What happens if a child is bullied by a teacher, for example, being hit as a result of homework not done?

  • It is illegal for a teacher to hit a child at school.
  • The child, his/her parents or legal guardians can report the bullying by a teacher to the school’s governing body, or they can report it to the South African Police Service (“SAPS”) where criminal charges can be brought against the teacher.
What does it mean to be charged, convicted and sentenced?
  • To be charged with an offence refers to a formal allegation that is made against a person, which sets out the offences s/he committed, such as assault or rape. 
  • To be convicted refers to when a person has been found guilty by a court of the offence s/he has been charged with.
  • To be sentenced refers to the punishment a court may give a person who has been convicted of an offence, such as a fine and/or a period of imprisonment.


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