A divorce is rarely easy. When children are involved, even an amicable divorce can take a turn for the worst. When property is involved, it is important to take action to ensure that your future interests are taken care of. With the help of an experienced divorce attorney, your divorce or family law matter can be handled in such a way as to benefit your current and future interests as well as those of your family.

An uncontested divorce is shortly where the parties are in agreement with every part of the divorce proceedings. Simply put there must be concurrence from aspects such as the maintenance & custody of the children as well as spousal support, to the division of the assets & liabilities. This is a simple and inexpensive procedure of divorce, therefore the costs are limited and the process can be dealt with electronically between yourself and one of our attorneys.

The implementation of the Children’s Act on 1 April 2010 brought along positive changes in respect of the responsibilities and rights of parents. The best interest of the minor child is of paramount importance for the Court when making decisions affecting the minor child. The Act provides for full or specific responsibilities and rights in respect of a minor child for both parents whether married or unmarried, provided that unmarried fathers complies with the terms stated in Section 21 of the Children’s Act. The same responsibilities and rights also applies to parents who have adopted a child. It is important to note that to refuse the other parent to exercise his/her parental responsibilities and rights in respect of a child may constitute an offence and liable on conviction to a fine or even imprisonment.

Other persons who do not have automatic responsibilities and rights in respect of a child, but has an interest in the well being of a child, such as grandparents or extended family, may apply to the relevant Court for an order that full or specific responsibilities and rights be awarded to such person where circumstances permit.

A key term used in the Children’s Act is parental responsibilities and rights. This is used as a blanket term which covers care, contact, guardianship and maintenance in respect of a minor child.

What is Care?

With the implementation of the Children’s Act, “custody” has been replaced with the concept of care. Care in respect of a minor child includes, but is not limited to, providing the child with a suitable place to live, providing the child with the necessary financial support and providing living conditions that are conducive to the child’s health, well being and development.

What is Contact?

With the implementation of the Children’s Act “access” has been replaced with the concept of contact. Contact in respect of a minor child means maintaining a personal relationship with the child, communicating with the child and visiting the child on a regular basis, whilst keeping in mind the best interest of the child. Contact is usually granted to the parent who does not have permanent residency of the minor child.

What is Guardianship?

Guardianship in respect of a child means to administer and safeguard the child’s property, to represent the child in legal matters and to give consent where required by law. This includes issues such as consent to the child’s marriage, adoption or removal of the child from the Republic.

It is important to note that a child may have more than one guardian, ie: both parents, and that the High Court is the upper guardian of all minor children.

What is Primary Residence?

Primary residence of a minor child is the home of the parent where the child will permanently reside, subject to the contact rights of the other parent or guardian. There is no presumption in favour of awarding primary residency to either parent and the Court has a wide discretion to act in the best interest of the minor child. The parents can also agree to have joint residency of the minor child, although this must be carefully considered and advised by the appropriate professionals.

A minor child is entitled to reasonable maintenance from both parents to provide for the needs of the child, including but not limited to food, clothing, housing, education and medical care.

Maintenance for a minor child is the responsibility of both parents, regardless of whether the parents are unmarried, married or divorced. An Application for maintenance or variation of maintenance on behalf of a minor child, can be brought by either parent at any time. The Application is brought to the relevant Magistrates Court for obtaining a new maintenance order or for a variation/rescission of an existing order.

Parties should take note that non-compliance with a maintenance order is a criminal offence. Should one party not have the means to comply with an existing maintenance order, the onus rests with that party to apply for a variation or rescission order, as the case may be. Failure to act timorously may cause arrear maintenance which in turn can result in execution steps against the defaulting party and/or imprisonment.

Mediation is a process in which areas of agreement and disagreement are vigilantly defined, relevant information is gathered and shared, different proposals are suggested and discussed, the position and goal of each party are explained, and negotiations that are conducted which then lead to the resolution of the conflict.

Divorce mediation generally takes place during the pre-divorce or separation phase between the parties. The mediation process can commence once both parties agree thereto and represents a cost effective alternative to litigation.

The parties can also mediate where disputes or confits arise post-divorce. The mediator’s role is to remain neutral but also help each spouse see both sides clearly in the decision making process. The divorce mediator actively participates in the negotiations, but the spouses or ex-spouses have full control over the outcome of their decision making process.

The mediation process can have a significant contribution toward the outcome of the divorce proceedings if the process is well executed.

Allow our Family Law specialists at Cawood Attorneys to assist you with your family law matters, divorce proceedings and post-divorce proceedings as painless as possible.

An Antenuptial Contract (ANC) is an agreement entered into by the intended spouses prior to entering into the marriage with the intention of concluding a marriage out of community of property. This has the effect that each spouse retains ownership of his/her assets in their separate estates, instead of having one joint estate. If no ANC is entered into, the parties will automatically be married in community of property.

It is extremely important to obtain sound legal advice before entering into a marriage as the decision to conclude an ANC or not will have consequences both during the subsistence of the marriage, or at its dissolution by death or divorce.

Prospective spouses have one of two types of Antenuptial Contracts to consider:

1. an ANC that excludes community of property, community of profit and loss, with the EXCLUSION of the Accrual System.

2. an ANC that excludes community of property, community of profit and loss, with the INCLUSION of the Accrual System.

Neither of these 2 contracts takes preference over the other and the type of contract is chosen by the intended spouses depending on their specific needs and the dynamics of their relationship. Cawood Attorneys will tailor your ANC to your specific requirements and ensure that the contract is duly registered at the Deeds Office.

In a society where living together as opposed to taking the formal step into marriage is increasing globally, so too does the need for the public to understand Cohabitation.

A common misperception is that the cohabitees acquire the same rights as spouses of a marriage in community of property and that therefore at the termination of the relationship, maintenance and division of assets can be claimed. This cannot be further from the true state of affairs and it is therefore essential that you enter into a Cohabitation Agreement with your partner to regulate the position should the relationship end.

For some reason however, cohabitees feel uncomfortable to enter into a cohabitation agreement and in practice rarely do, probably because they do not want to pressure their partners or seem as if they do not trust their partners. Reality is that if no such Cohabitation Agreement exists during the relationship, neither do most of your rights at the termination thereof as there is no obligation for maintenance or division of assets and liabilities. You might find yourself in the midst of complex litigation to obtain your fair share.

Cawood Attorneys deals with this complex issue whether there is a Cohabitation Agreement in place or not, and we encourage anyone who requires our services to contact us for a consultation.

A Rule 43 Application is an inherently urgent High Court Application brought by one of the spouses for interim relief during contested divorce proceedings where it appears that the divorce may not be finalised soon or the other spouse has ceased to comply with his/her obligations. A similar Rule 58 Application is used in divorce matters issued out of the relevant Regional Court.

A Rule 43 Application can be used to obtain an order for the following, amongst others:

• Interim maintenance for the Applicant (wife/husband) and/or a minor child;
  
• Interim care and contact with a minor child;
  
• Interim contribution towards legal costs;
  
• Enforcing certain payments, such as payments towards the bond on the matrimonial home, medical aid premiums and school fees;

   

Once the court has granted the order, it will regulate the terms between the parties until the divorce is finalised. The Rule 43 Application provides a quick and simple solution for the Applicant under financial strain during divorce proceedings.

Child Relocation is a very complex subject and affects all parties concerned including the minor children to be relocated.

On the one hand you are dealing with the right to freedom of movement and on the other you are dealing with the limitation of visitation rights of the non-relocating parent. What contributes even more to the complexity of relocation is the fact that there is no legislation that regulates this process and regards must be given to caselaw.

There are a few factors that have been addressed in previous caselaw such as the best interest of the minor children, if the relocating party’s move is bona fide and reasonable, the purpose of the relocation, interest of the non-relocating party and the impact that the relocation would have on the affected child and his/her relationship with his/her parents however with that being said every case will be dealt with on its own merits.

Our specialist Family Law attorneys will be able to assist you whether you are the relocating or non-relocating party.

A Protection order is an order made by the court to prohibit the person whom the order was made against to commit any acts of domestic violence against you or your family.

Any person fearing for their own safety or the safety of their children may apply for a protection order at the Magistrate’s Court in the area where they reside. Once a final protection order is granted it will remain in effect until set aside by a competent Court upon Application. Protection orders can also be obtained for various other forms of protection, including to regain assets removed from your possession or even for emergency monetary relief to pay monthly expenses after you were forced to leave the joint residence and left destitute.

Contempt, in South Africa, is either civil or criminal, with the former used to coerce compliance. Where an agreement has been incorporated into an order of court, or a party simply disobeys a court order, and the party’s disobedience is intentional and wilful, a contempt order can be sought, calling for incarceration as a means of obtaining compliance. Agreements can also be enforced in a variety of other ways, including mediation, arbitration, and court actions for breach or specific performance.

Decision making is something that we all deal with on a daily basis.

Our decision making relates to matters such as where we live, which religion we exercise, health care, education, employment, social contact and financial affairs just to mention a few. The exercise of choice in matters such as these is one of the ways in which we express our individuality.

When a person becomes incapable of managing his or her own affairs, especially the administration of his or her estate, it is imperative that someone be legally appointed to assist the person who has become incapable, (due to mental health, accidents etc.)

To be appointed as a curator one must obtain assistance from a legal representative to assist with an application to the relevant court.

The appointed curator will step into the shoes of the person who lacks the mental capacity to make decisions and/or mange his/her affairs and act in his/her best interest.