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  Legalwise Wiseup  
  April 2016  
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Frequently Asked Questions
LegalWise provides you answers on marriage, divorce and maintenance

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 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.

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.

How can LegalWise assist you?
Should you require an explanation on your rights on this topic, please contact your nearest Branch.

  Inside this Issue  
Letter from the Chief Executive Officer
You as a Parent
What did the Judge say?
Customary Marriages: How the law is applied
Frequently Asked Questions
Letters from Members
Increasing Literacy in the Community
This bakkie must be won
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