Family law is a field of legal practice that encompasses and caters for persons who are related by blood, marriage or through adoption, while further including those in a family unit created through the mechanisms of marriage, customary unions or similar mutually beneficial relationships.
While these relationships may be governed by legislation, custom or agreement, they sometimes fail leaving one or both parties potentially destitute or at the mercy of the other. And where does that leave the children?
Our firm is here to guide you through the legal process of resolving your matter, protecting your rights and that of your children.
See below to see how we can assist you.
Divorce (Civil, Muslim & Customary) MaintenanceProtection Orders & Domestic Violence MediationLife Partnership Agreements Pet Care Agreements Parental Plans
Marriage is traditionally defined as a legally recognised life-long voluntary union between two people as partners in a personal relationship to the exclusion of all other persons.
Civil marriage/union is a marriage in terms of the relevant legislation, respectively being the Marriage Act 1961 as amended and the Civil Union Act 2017 as amended; read together with the applicable matrimonial property regimes as defined in the Matrimonial Property Act 1984, as amended.
Customary union is negotiated and celebrated in accordance with indigenous African tradition and the relevant legislation, being the Recognition of Customary Marriages Act 1998 as amended.
Muslim marriage recognition has been a contentious issue in South African legislation, however in terms of the latest Constitutional Court ruling in “Women’s Legal Centre Trust v President of the Republic of South Africa and Others (CCT 24/21) [2022] ZACC 23”, these unions are now a major step closer to being recognised in South African law.
Divorce litigation can be a lengthy and costly affair; our team of legal practitioners will strive to find the most efficient and cost-effective manner in which to set the parties on their respective new paths.
Mediation is our first step, and where successful it culminates in a settlement agreement between the parties, also known as a Consent Paper, and forms part of the Summons and ultimately the Divorce Order. Where minor children are involved, the Consent Paper deals with their care and contact, and the Family Advocate certifies the agreement is sound. The Summons is then served and a court date is obtained upon which only the Plaintiff has to appear.
Where mediation fails, litigation begins with Summons being drafted, issued and served via sheriff. Failed mediation has its benefits, as it provides an insight into the very heart of the battle at hand; the ancillary matters having been dealt with to the point of departure.
We require your marriage certificate, identity document and antenuptial contract together with your FICA documentation to begin the process.
Our team of attorneys will expertly assist and manage your divorce, while always being mindful of your needs and those of your minor children. We care, because you matter.
There are a few types of maintenance.
Rule 43 Interim Maintenance, pending the outcome of the divorce action, is the relief afforded to a spouse who has no form of income to cover legal fees, or where the divorce has become protracted, taking a long time to finalise.
Rule 43 maintenance provides a mechanism affording a financially oppressed Plaintiff spouse with the means of exit from the marriage; the funds to begin the legal process are claimed from the Defendant spouse.
Spousal maintenance is maintenance that provides for the rehabilitation of a spouse allowing the spouse to, for example, reskill for re-entry into the labour market. Spousal maintenance is only in place for a fixed period of time. The court takes a number of factors into account when assessing whether to grant such maintenance, for example the age of a spouse, qualifications and earning potential, financial needs and obligations, standard of living, whether there are children or not, how long the spouse has worked during married life, their health and duration of the marriage. One must persuade the court to allow it to grant spousal maintenance. Beware the inclusion or exclusion of a Dum Casta clause.
Nominal maintenance, where spousal maintenance is not obtained at time of divorce; an attorney can keep the door open for such later claims by the inclusion of nominal maintenance; is only granted where a future need can be identified.
Children’s maintenance in terms of the Maintenance Act enforces the common law duty of a child’s parents to support the child. The child’s reasonable needs are paramount. In determining the reasonable needs of a child on a monthly basis, one completes a schedule of monthly costs, and thereafter each parent’s obligated contribution is calculated in terms of a formulae.
The duty to maintain exists irrespective of whether the child is born in or out of wedlock.
Maintenance should be adjusted regularly in accordance with the children’s needs or the abilities of the parents. Applications can be made to the appropriate court for a maintenance order, a variation of a maintenance order or the setting aside of a maintenance order.
Our team of attorneys will expertly assist and manage your maintenance claim, while always being mindful of your needs and those of your minor children. We care, because you matter.
Are you being harassed or abused?
Protection orders are granted in terms of two acts. The Protection from Harassment Act where you have no domestic relationship with the aggressor, and the Domestic Violence Act 1998, as amended where you are in, or were in, a domestic relationship with the aggressor.
These applications can result in an immediate interim protection order being granted, which temporarily protects your rights and affords a level of protection pending the outcome of the hearing on the allocated court date, at which the aggressor must show just cause as to why the order should not be made final.
Selecting the correct protection order, and properly drafting your affidavit will be paramount to the success and outcome of your matter. A properly drafted affidavit will determine whether you obtain an interim protection order or not. Do it right the first time, because your life counts.
Our team of attorneys will expertly assist and manage your protection order application, while always being mindful of your needs and those of your loved ones. We care, because you matter.
Mediation is loosely defined as a confidential process whereby the parties in conflict enlist the services of an acceptable neutral and impartial third party to facilitate discussions, limit the issues while bringing them into perspective, and to assist them in reaching an agreement on contested issues.
Mediation can be seen as an alternative to litigation. Staying out of the court room can make dispute resolution more affordable, as mediation is less costly than litigation. As a large percentage of legal matters are settled out of court after substantial litigation costs have already been incurred, it makes financial sense to attempt settlement prior to litigation.
The content and outcome of the mediation is determined and owned by the parties, while the mediation process is owned by the facilitator.
Why should I mediate?
Cost effective; confidential & without prejudice; allows for creative solutions; attempts to preserve ongoing relationships, emotional and mental well-being; prompt settlement; problem solving environment. Mediation is an incredibly effective means of resolving conflict peacefully.
What can I expect in mediation? General mediation steps involve the following:
- Pre-mediation – The mediator contacts the parties individually providing a brief introduction to the process, inviting each to sign an agreement to mediate, this as mediation is a voluntary process.
- Mediation – The mediator/facilitator opens the mediation, sets the ground rules, explains the confidentiality of the process and allows each party to make an opening statement.
Side sessions – The mediator may break into side sessions to build trust and clarify issues, explore interests and the best alternatives to negotiated agreement, while considering the realities of all parties. - Exploration – Solutions are brain stormed, and can be done in side sessions, but are moved into joint sessions so both parties can participate in reaching their own solution.
- Conclusion – the mediator concludes the process by drafting a mediation agreement, or getting the legal representatives of each party to do so.
Contact our team who will assist you in effectively mediating your matter. We care, because relationships matter.
A life partnership is one where persons cohabit outside of a marriage relationship, and the relationship has most of the characteristics of a marriage.
They are also known as a domestic-partnerships, cohabitation or a common law-marriages.
What these partnerships lack is the protective benefits afforded by the institution of marriage.
People do not get married for a myriad of valid reasons, but this does not prevent one from entering into a loving committed relationship. Why then should this decision not to marry carry such a heavy toll?
Questions should be asked. Are you in a loving relationship but are not married? Do you live together? Are you both contributing to the relationship for the benefit of the relationship? How are your daily finances handled, how are assets managed, are you protected from creditors and third parties, are there children born of the partnership? What level of protection is afforded the couple?
For peace of mind and certainty, one can afford oneself some level of protection that the institution of marriage provides, without actually getting married. You are both already in love, both already committed and contributing to a life-long partnership growing your wealth and happiness as one; why then would you not together draft a universal life partnership agreement that protects your interests, and have it notarised?
Contact our team of attorneys who will assist both of you in protecting the interests of the relationship as against third parties and each other. We care, because family matters.
In a loving relationship? Adopted a fur baby? Aren’t they just adorable?
While relationships may sour, our love and humanity for our pets and furry friends never diminishes.
Plan for the care of your pets during their life, and do it with the best intentions of your furry pal in mind.
Contact our team of animal lovers who will assist you in defining and drafting a pet care and contact agreement, tailored to the needs of your beloved furry family member.
We care, because the love of a pet is unconditional.
It’s a disheartening reality that in these difficult times, family units are failing more often than not. Stats SA show divorces are up.
While the fallout between parents can be dealt with in a civil manner, most times our emotions get the better of us and our children bear the brunt of divorce.
An integral part of a divorce is the parenting plan.
Parenting plans are written agreements between parents, who are the co-holders of parental rights and responsibilities, outlining how they will exercise these rights and responsibilities after separation.
Our Constitution puts the needs of a child before all; after all, children are our connection to the future, our better version of ourselves. A product of love, be it lost or not.
We strongly believe this is to be kept at the forefront when drafting such plans. The office of the Family Advocate reviews these agreements prior to a divorce involving minor children being granted.
Whether you instruct us to tend to your divorce or not, or whether you are unmarried and separated, our team of attorneys will assist parents in structuring a fair and proper parenting plan.
We care, because children are our future.
Our family service offering also encompasses the following:
- Children’s care and contact; parenting plans;
- Divorces (uncontested, contested and mediated);
- Estate division & accrual claims;
- Life partnership / cohabitation agreements;
- Maintenance (spousal & children’s); variations; interim maintenance i.t.o Rule 43/58 applications; arrears maintenance recovery
- Marriage property regimes and antenuptial agreements. Post nuptial property regime changes.
- Protection orders
WHERE TO FIND US
Cape Town
