F & Q’s

 

    Family Matters:

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 claim maintenance for him/herself.

In order to determine whether to grant a spousal 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.

 

Labour Law

Dishonesty in the job Application and Interview Process

The relationship between employer and employee is based on trust. Deception or dishonestly may be grounds to terminate the employment relationship eg If you claim to have qualifications which turn out not to be your employee will have grounds for termination.

How do I lodge a grievance?

If your manager is being difficult without proper reason you would be entitled to lodge a grievance against your manager. The grievance would usually be in writing and lodged with your superiors manager or HR. The grievance should suggest a desired outcome. If the grievance is not resolved within a reasonable time you would be entitled to refer the matter to the CCMA or possibly resign on the basis of constructive dismissal and refer the matter to the CCMA

I am a victim of sexual harassment at work.

You should immediately take the matter up with Human Resources  or a senior manager.  If the employer fails to take steps to protect the employer being sexually harassed both the employer and the person harassing the employee will face sanction.

What is Constructive dismissal?

Constructive dismissal – Section 186(e) of the Labour Relations Act 66 of 1995 defines dismissal in this context as occurring when: “an employee terminated a contract of employment with or without notice because the employer made continued employment intolerable for the employee”.

 

Wills & Estates

Can I be allowed to die if I have no chance of recovery?

Yes – we do recognise the so-called “living will” which provides that no steps must be taken to resuscitate you if there is no chance of you recovering from a severely compromised state of health.

What is a Trust?

A Trust is created when and individual or other Legal Entity relinquishes control of assets to third parties known as Trustees. The trustees then care for the assets for nominated beneficiaries who may vary from individuals to Educational institutions.

In the simplest terms, there are basically two types of trust – a trust created while the persons are still alive, and the ‘testamentary trust” which is formed once the estate of a person has been wound up. Trust is a vehicle which effectively separates your assets and liabilities from your estate.  It is similar to a company where it controls or “owns” assets for the benefit of other people

Can I personally wind up an estate on my own?

Possibly yes, but unlikely as the Master of the High Court normally insists on a professional person, such as an attorney, to be appointed as executor of a deceased estate