Divorce Attorney Cape Town

Divorce – What every woman should know


Divorce - What women should know
Divorce - What women should know

Making the decision to divorce is a tough one, and the chances are it’s followed by an even more traumatic lead-up to the divorce, it is like a roller-coaster on an emotional track.

Women are mostly in the dark when it comes to the financial affairs of her husband and women are encouraged to gather as much financial information about their husband’s financial affairs before the divorce proceedings commence, to establish the magnitude of the estate.

It is extremely important for any woman to know what’s going on in her husband’s financial affairs. It’s difficult when you don’t have access to his share portfolio or balance sheet, but one must reasonably expect to get an idea of financial affairs.

An attorney cannot negotiate on behalf of a spouse without knowing in advance what the estate is worth.

In many divorce settlements, the wife ends up seeing what the estate is worth only late in the divorce process.

16 Important points to consider in divorce:

  1. Make copies of your husband’s bank statements, credit card statements and get hold of the short-term insurance policies as well as copies of pension funds and retirement funds. This will provide input on the extent of assets available and the value of the estate.
  2. If you are married in community of property or out of community of property with the accrual you have to ask your attorney to build a clause into the settlement agreement to say if any assets that come to light after the divorce settlement, you will be entitled to 50% of those assets and the husband will have to pay the legal fees involved in the recovery process of those assets when they do come to light.
  3. A more accurate sense of assets will come to light if the divorce is contested as parties are required to disclose any information to do with financial affairs. In terms of the court rules the husband can be required to make full disclosure of his assets and liabilities and you will be able to obtain all financial information spanning over a period of 3 years or more, including bank statements, credit card statements, investments etc.
  4. Women are advised not to leave the matrimonial home if there are minor children involved, because it provides a sense of stability for the kids. It’s better for the husband to leave if the husband is not the primary caregiver. If a husband makes himself guilty of abuse, the wife can get a restraining order to evict him from the property under certain circumstances or restrain him to enter certain areas of the house.
  5. Where the parties are married in community of property the wife is entitled to half the pension or retirement annuity fund. In a marriage out of community with the accrual, the pension fund will be regarded as part of the husband’s assets for purposes of calculating the accrual that the wife will be entitled to.
  6. In terms of the Divorce Act, the wife (if married in community of property) can choose to ask for the pension fund money to be paid in cash, or transferred to a pension fund of her choice.  Normally pension funds pay out the wife’s portion in 3 to 6 months after the divorce.
  7. Make a list of your monthly income and expenses, as if you’re going to live on your own with your children. It’s important because you get situations where the wife is not working or earns much less than the husband and doesn’t have the money to fight a divorce battle.  She can bring an application pending a divorce, for interim maintenance, which means contributing maintenance before the divorce is finalised. She can also apply for contribution to her legal expenses. If interim-maintenance is granted and the husband does not comply with the court order, he is in contempt of court.
  8. In some instances the wife can apply for emergency monetary relief in the magistrate’s court pending the institution of an application for interim maintenance by utilizing the provisions of the domestic violence act because the husband has blocked the use of credit.
  9. Interim maintenance falls away once the divorce order is granted. There have been situations where the wife has been granted very favourable interim maintenance terms, so sometimes a divorce is stalled  in order to continue getting a hearty amount of money each month.
  10. The granting of interim maintenance in a Rule 43 application cannot be appealed. The only way the husband can minimize this is if he goes back to court and explains and proves that his financial situation has changed so much that he’s entitled to a reduction. But this does not happen easily.
  11. Many battles in a divorce surround the children. Normally the wife is the parent of primary residence and the husband the parent of alternate residence. Increasingly, there’s a shared parenting approach with children staying with the mother for a week and then the father for a week and each party takes care of the children during that period.  I see a lot of children used as a pawn. It is important to get a parenting plan in place as soon as possible, and register that with the family advocate and stipulate that if issues arise with parenting and the children the parties need to go to a psychologist or a social worker to facilitate contact.
  12. In matters where money is not fought over, it may make financial sense to go to one lawyer who can work for both parties. But a divorce that is acrimonious requires that each party needs a lawyer to assist.
  13. A few mediation organizations exist where people can see a mediator to resolve disputes, to settle with both parties. The mediator doesn’t have the authority to issue and award for damages but he can facilitate the settlement process. If an abusive husband is involved, mediation is unlikely to work.  But it can work if the divorce is not acrimonious. Normally the spouses have to pay the costs of a mediator 50/50. Sometimes this route can be more expensive than an uncontested divorce, depending on the amount of sessions that the parties have to attend.
  14. Where a couple owns a property together, they need to decide whether both parties want to keep the interest in the property, sell the property and split the proceeds, or whether one wants to buy out the other. The decision has financial implications because of transfer duties and tax.
  15. It’s important to consider instances where the husband has no real assets. An insurance policy should be taken out in the event that the husband passes away and there is no money to help cover maintenance, in case of his death.
  16. The decision to divorce is always a business decision. You need to look at what happens until the children turn 21 or becomes self supporting, that there’s maintenance, medical cover for them, a school education and whether it’s government or private school and tertiary education.

About the Author:

Bertus Preller is a Divorce Attorney at Abrahams and Gross in Cape Town, a law firm that has been in existence since 1935 and has more than 20 years experience in most sectors of the law and 13 years as a practicing attorney. He specializes in Family Law and Divorce Law in and handles divorce and family law matters across South Africa. Bertus is also the Family Law expert on Health24.com, he blogs regularly on news24.com and nuus24.com and has been quoted on Family Law issues in various newspapers such as the Sunday Times and Business Times and magazines such as Noseweek, Keur, Living and Loving, Longevity, You and Huisgenoot, and also appears frequently on the SABC television show 3 Talk. His clients include artists, celebrities, sports people and high net worth individuals. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.

Contact details

bertus@divorceattorney.co.za

O: 021 422 1323

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Top South African Divorce Attorney shares information on Antenuptial Agreements or Prenup Agreements


Top South African Divorce Attorney shares information on Antenuptial or Prenup Agreements

We tapped the brain of Bertus Preller one of Cape Town’s best divorce and family law attorneys on Antenuptial or Prenup Agreements. Bertus Preller is based in Cape Town and has more than 20 years experience in most sectors of the law. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town and litigates in divorce matters across the country. He is also the Family Law expert on Health24.com and on the expert panel of Law24.com and is frequently quoted on Family Law issues in newspapers such as the Sunday Times and Business Times. His clients include celebrities, actors and actresses, sportsmen and sportswomen, television presenters and various high net worth individuals as well as ordinary people. He has a deep passion for matters involving children. His areas of expertise are Divorce Law, Family Law, International Divorce Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried father’s rights, domestic violence matters.

What is an Antenuptial agreement?

It is a contract entered into by two people, prior to their marriage, in which they stipulate the terms and conditions for the exclusion of the community of property between them. It ensures that one spouse’s creditors cannot hold the other person liable for repayment of debt, unlike when people marry without entering into an Antenuptial Contract, i.e. ‘in community of property’.

An Antenuptial Contract can also include any terms and conditions as long as they are not contrary to public policy. Most of these terms and conditions relate to the division of assets should the marriage be dissolved due to either death or divorce. During the marriage each spouse will retain his/her separate property and would have complete freedom to deal with that property as he/she chooses. This would not be the case if the parties were married ‘in community of property’.

Who needs an Antenuptial agreement?

While antenuptial agreements (“prenups”) are recommended to anyone for whom they make good economic and personal sense.

People who may benefit from prenups include those who:

  • Have assets, even if they are not considered wealthy
  • Owned a business prior to getting married
  • Have children from a previous marriage
  • Will marry someone with a poor financial track record, high-risk business investments
  • Want to avoid the emotional and financial stress associated with a contested divorce
  • Want a quick and inexpensive method of ending their marriage, if it should fail eventually
  • Want to protect their assets in the event of divorce or death

What types of issues can be included in an Antenuptial agreement?

Antenuptial agreements or prenups can include provisions relating to:

  • The rights and obligations of each of the parties regarding property owned or acquired by either, at any time and wherever located
  • The exclusion of property or business
  • Donations made to a spouse
  • The allocation, division and distribution of the parties’ assets and debts upon divorce or death
  • Any other matter that isn’t illegal or in violation of public policy

Should an Antenuptial agreement be considered cast in stone or can it be varied during the course of the marriage?

It is possible to change your Antenuptial agreement on application to the High Court.

What is meant by a Marriage out of Community of Property?

Each spouse retains his or her own assets and liabilities whether acquired before or during marriage. There is no sharing of profits and losses. Both spouses have full and independent contractual capacity. Upon death or divorce, each spouse keeps control over their own assets. This clearly gives parties absolute independence of contractual capacity and protects the estates of each party against claims by the other party’s creditors. There is no provision for any sharing whatsoever. A party who contributed to the other party’s estate whether in cash or otherwise would have a heavy onus to prove that he or she was entitled to anything from that party’s estate on dissolution of the marriage. Where one party stays at home to raise children and does not contribute financially towards the marriage and the other spouse works and accumulates assets, the former may find herself with nothing and no claim to the assets of the latter. The marriage is governed by a contract known as an ante nuptial contract which is concluded by the parties before the marriage. If the marriage occurred after 1 November 1984, the contract had to specifically exclude the system of accrual. In the absence of this exclusion the rules of accrual will automatically apply.

What is meant by a Marriage out of Community of Property with Inclusion of the Accrual System?

The Matrimonial Property Act 88 of 1984 brought with it the “accrual” system which permits a form of sharing, consistent with a primary objective of marriage, but permitting retention of each party’s independence of contract and ability to retain their own unique separate estates. “Accrual” means increase. The accrual system is a form of sharing of the assets that are built up during the marriage. The underlying philosophy in respect of the accrual system is that each party is entitled to take out the asset value that he or she brought into the marriage, and then they share what they have built up together. One spouse’s property cannot be sold to pay the other’s creditors if the other becomes insolvent – in contrast to the case where the parties are married in community of property. It is of utmost importance that a party wishing to enter into an Ante Nuptial Contract must fully understand what it is they are signing. It is for this reason that a standard form contract cannot be used, that consultations cannot be held over the phone or by means of email and that, unfortunately. The important features of an accrual marriage are in essence the following: Each party retains his or her own estate. Each party may accumulate assets and incur liabilities without interference from or assistance of the other spouse. The estate of each party is determinable separately. The monetary value of the smaller estate is subtracted from the monetary value of the larger estate, the difference is split, and the party having the larger estate pays half of the difference between the two estates to the party with the smaller estate. At dissolution of the marriage, the estate of each party is calculated by listing all assets, listing all liabilities, subtracting liabilities from assets and arriving at a net asset value. In practical terms this amounts to a similar division to a marriage in community of property. However there are certain crucial factors of an accrual marriage which add complexity and much more freedom of choice. When drafting the Ante Nuptial Contract, the parties can each decide to exclude certain assets. The effect of excluding an asset will be that it does not feature on the asset statement at dissolution of the marriage and is completely excluded from the calculation. Assets which are not properly described can cause huge problems when the executor or the divorce attorney tries to decide what to do with it in calculating the net accrual value. To exclude either a specific asset, or a commencement value, or both (which must be separate and not derived from the same asset), can effectively ensure that couples share only what they choose to share and keep separate any item or items, or values, which they do not believe it fair to share (for example something acquired before the relationship commenced). Parties not wishing to exclude specific assets may exclude a certain sum of money which is the agreed equivalent of assets which they do not wish to share, and which is termed a “commencement value”. Excluded from the Accrual Certain property belonging to either the husband or the wife may not be taken into account when the accruals are worked out: Any damages awarded to either spouse for defamation or for pain and suffering; Any inheritances, legacies or gifts that either spouse has received during the marriage, unless the parties have agreed in their antenuptial contract to include these or the donor has stipulated their inclusion; A donation made by one spouse to the other. This is not taken into account as part of either the giver’s or the receiver’s estate, with the result that the giver cannot recover part of what he or she gave and the receiver need not return any of it.

SAMPLE OF AN ANTENUPTUAL AGREEMENT WITH ACCRUAL

This agreement is a sample and is of a general nature. Certain additions and ammendments may be required to suit your specific needs.

It is hereby certified that a R10.00 stamp is affixed to the original contained in my protocol register. PROTOCOL NO : _________________________

ANTENUPTIAL CONTRACT

with the

APPLICATION OF THE ACCRUAL SYSTEM

in terms of the

MATRIMONIAL PROPERTY ACT, 1984

BE IT HEREBY MADE KNOWN THAT on this _________________day of ________________________ 2011 before me

(INSERT NAME OF NOTARY PUBLIC) Notary Public, practising at Pretoria in the Province of _______

appeared

FULL NAME: _______________________ IDENTITY NUMBER: ________________ UNMARRIED

-and-

FULL NAME: ________________________ IDENTITY NUMBER: _________________ UNMARRIED

And the appears declared that whereas a marriage has been agreed upon, and is intended to be solemnised between them, they have agreed and now contract with each other as follows :

1. That there shall be no community of property between them.

2. That there shall be no community of profit or loss between them.

3. That the marriage shall be subject to the accrual system in terms of the provisions of Chapter 1 of the Matrimonial Act, 1984 (Act No. 88 of 1984).

4. That for the purposes of proof of the nett value of their respective estates to be as follows: that of (INSERT FULL NAME) to be R 000.00 consisting of :_______ (INSERT DETAILS) that of (INSERT FULL NAME) to be ZERO

5. That the assets of the parties or either of them, which are listed hereunder, having the values shown, and all liabilities presently therewith, or any other asset acquired by such party by virtue of his possession of former possession of such asset, shall not be taken into account as part of such party’s estate at either the commencement or the dissolution of the marriage.

The assets of (INSERT FULL NAME) so to be excluded are R000.00 consisting of : (INSERT DETAILS)

The assets of (INSERT FULL NAME) so to be excluded are NONE

THUS DONE AND EXECUTED at _________________________aforesaid on the day, month and year first aforewritten in the presence of the undersigned witnesses.

AS WITNESSES:

1.

2.                                                      ………………………………………………………

THUS DONE AND EXECUTED at _________________________aforesaid on the day, month and year first aforewritten in the presence of the undersigned witnesses.

AS WITNESSES:

1.

2.                                                      ………………………………………………………

QUOD ATTESTOR NOTARY

Divorce Checklist, what women should know


Divorce, what women need to know?

  1. You have to understand your marriage regime, and if you don’t, then find someone who can explain it properly to you. Are you married in or out of community of property? If you are married in community of property, you will by law be entitled to 50% of the communal estate and if you are married out of community of property with the accrual system, you are entitled to half of the difference of you and your spouse’s accruals. If you are married out of community of property without the accrual prior to 1 November 1984, you will be entitled to ask for a redistribution of assets, which can entail that you may be able to claim 50% of the joint assets, but if you married out of community of property without the accrual after 1 November 1984 you will only have a claim for maintenance under certain circumstances.
  2. You can under certain circumstances claim rehabilitative maintenance. Rehabilitative maintenance is where one spouse pays the other for a period of time, say for two years, so that the ex-spouse can study, for example, to get a job or search for employment. Rehabilitative maintenance can also be used in setting up house again, relocation costs, utility bills, etc.
  3. Remember that you can lodge an application pending divorce to obtain maintenance while the divorce is in the process, you can also claim in such an application that your spouse makes a contribution to your legal expenses.
  4. Obtain as much financial information on your spouse; make copies of all bank statements, credit card statements and the like as well as a schedule of all the assets and liabilities, sources of income etc.
  5. Draft a detailed budget of your current monthly expenses and income. For you and your children. It may be worthwhile to cater for future expenses like. Secure the monthly maintenance with a cession of an insurance policy on your ex-spouses life in case he/she is disabled or dies.
  6. Try to stay in the family house (if it’s close to your school or work). There is a saying in our law, that possession is 9 tenths of the law. Remaining in the communal home will also stabilise the situation of the children, as it is proven the relocation can be a very traumatic experience for the children.
  7. Remember that you shouldn’t necessarily have to pay transfer duties for a property transferred to you during your divorce. You may have various options relating to the property that both of you own, for example by retaining it or selling it and divide the net profits.
  8. See to it that your Divorce Settlement Agreement is drafted in such a way that that you can enforce a garnishing order on your ex-spouse’s salary should he/she default on payments, in any event, non-payment of maintenance after divorce may result in a contempt of court application.
  9. See to it that your Divorce Settlement Agreement is drafted to obtain a share of any assets that your spouse has hidden and what you are not aware of at the time of divorce in that event that you are married in community of property or out of community of property with the Accrual system.
  10. Don’t settle for less to get out, many women simply walk out due to the emotional pressure. Remember that divorce is always a business decision and the decisions that you make now will have an impact only years later in your life. Divorce is a legal process, it can be very frustrating and emotional draining that takes time and strategic planning. Don’t change attorneys in the process simply because of your own frustration, as they say, the battle of divorce is like a chess game.
  11. Remember that your ex-spouse’s assets also include shareholdings in companies, retirement funds, pension funds and even tax refunds.
  12. Think with your head and not with your heart.
  13. Remember to change your Will soon after the divorce.

For legal advice contact: info@divorceattorney.co.za

About the author:

Bertus Preller is a Divorce and Family Law Attorney in Cape Town and has more than 20 years experience in most sectors of the law and 13 years as a practicing attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com and is frequently quoted on Family Law issues in newspapers such as the Sunday Times and Business Times. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Parenting Plans, Parental Responsibilities and Rights, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters, international divorce law, digital rights, media law and criminal law.

Your ex may inherit your estate if you don’t change your Will after divorce


It happens frequently that a spouse  nominates the other spouse as a beneficiary in his or her will. If the spouses subsequently divorce, the question arises whether the former spouse will still inherit in terms of the will. If the testator changes his or her will to disinherit his or her ex the position is clear and the former spouse will not inherit. But the problem comes in where the testator does not change his will. This is governed by Section 2B of the Wills Act 7 of 1953. It provides that if a testator dies within 3 months after his/her divorce any will he or she executed prior to the dissolution of the marriage will be implemented as if his/her ex spouse had died before the dissolution of marriage. In other words, the ex spouse will be deemed to have died before the dissolution of the marriage and will thus not inherit.

The above is the position unless it is clear from the will that the testator wanted to benefit his/her ex despite of the divorce. Thus, if a testator no longer wishes that his former spouse should inherit he/she should revoke the existing will. If the will is not revoked and the testator dies more than three months after divorce, the testator’s ex spouse inherits if he/she was benefited in the will.

The above can be explained using the following example. A husband benefits his wife in his will. The spouses get divorced. Two months after the divorce the husband dies without changing his will. In terms of Section 2B, his ex wife does not inherit, unless it is clear from the wording of the will that the husband wanted her to benefit despite the divorce. If however, the husband died more than 3 months after the divorce, his ex wife will inherit in terms of Section 2B.

It is therefore important that you do change your will after divorce as the consequences could be of sorts that you never comprehended.

Bertus Preller

Family Law Attorney

Abrahams and Gross Inc.

www.divorceattorney.co.za

Bertus Preller is a Divorce and Family Law Attorney in Cape Town and has more than 20 years experience in law and 13 years as a practising attorney. He specializes in Family law and Divorce Law at Abrahams and Gross Attorneys Inc. in Cape Town. Bertus is also the Family Law expert on Health24.com and on the expert panel of Law24.com. His areas of expertise are Divorce Law, Family Law, Divorce Mediation, Custody (care and contact) of children, same sex marriages, unmarried fathers rights, domestic violence matters and international divorce law.

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