F.A.Q

Unfortunately not.  An Antenuptial Contract signed after you've been married, cannot be registered and will not be legally enforceable. 

In terms of South African law, you will be automatically married in community of property unless both parties had entered into an Ant-nuptial Contract that was notarized by an attorney (who's also a Notary Public) before the marriage was concluded.

If this was not done, the parties are by law married in community of property, and the only way to change their marital regime would be by way of a very costly application to the High Court, requesting permission for the registration of a Notarial Contract (Post-nuptial Contract) to change their marital regime from "in community of property" to that of being "out of community of property".

Yes, it is possible to change your marital regime without getting a divorce.

However, both parties must consent to the change and it will involve an application to the High Court to obtain permission for the registration of a Notarial Contract (Post-nuptial Contract) to change your marital regime from "in community of property" to that of being "out of community of property", which may either be subject to accrual or else exclude accrual.

No. On receipt of the signed Antenuptial Contract AND power of attorney, our notary public will issue a certificate to hand to the marriage officer. You will then be able to proceed with the marriage and the marriage officer will be able to register the marriage.

Even though the registration process will mostly only be concluded after the marriage had taken place, it must be done within 3 months of the date of signature of the Antenuptial Contract for it to be valid and enforceable against third parties.

The Antenuptial Contract must be signed in the Notary's presence by the intended spouses, OR by someone both have given a Power of Attorney to sign on their behalf.

In order to facilitate the online registration process, we require your Power of Attorney to enable us to sign your contract on your behalf, in the physical presence of the Notary.

After delivery of the original Antenuptial Contract from the offices of the Registrar of Deeds, the document will be scanned and emailed to you.

The original can then be collected from our offices, or the document can also be sent via Postnet or couriered to you, at your request, at an additional fee.

A credit report contains information about your credit history payment behaviour that is maintained by credit bureaus. It contains information such as your name, address, employer, and ID number - the details you give to credit grantors when completing a credit application form.

Credit bureaus also keep details on your credit history such as your account history and history of paying habits, that is, whether you pay your accounts regularly and on time. A credit report does not contain any data such as race, religious beliefs, political affiliations, or medical histories.

Default data is negative information supplied to credit bureaus by the store or bank if you default on your credit agreement with them, that is if you fail to pay your account.

A default remains on your credit report for 1 year, depending on the description of the default. Subjective classifications of consumer defaults remain for 1 year. Consumer default classifications where enforcement action is taken - such as bad debt written off or handed over, credit card revoked or repossession - remain on your credit report for 1 year.

Default data will be removed once the default is paid in full. Once the default has been paid, the lender has seven days to update their information and inform the credit bureaus of the paid up-status. The bureaus, in turn, have seven days from receiving the notification from the lender to amend your credit report.

Credit bureaus are required by the National Credit Act (NCA) to retain this information on the consumer's report for the prescribed retention period - regardless of whether it reflects negatively or positively on the consumer. Therefore this information may not be removed before the prescribed data retention period.

Most of the credit granters in South Africa are also members of the CPA (Credit Providers Association). As members, they have agreed to the time periods for which data should be displayed on a consumer's credit report.

The display period for s default payment is 1 year and for a judgment 5 years. These periods are in line with the data retention periods prescribed by the NCA. This enables banks and stores to make informed risk decisions when deciding on whether to grant you credit.

A listing of "Bad Debt - written off" does not mean that the amount was actually written off as noncollectable and is therefore no longer payable.

It is actually consumer default classification where enforcement action is taken, i.e. the relevant creditor has written off the amount in his own debtor's ledger as bad debt and proceeded to hand it over for collection by attorneys or Debt Collectors.

A judgement is granted when a court orders that you make payment on your debt after a certain legal process was followed.

Usually, this process will involve a letter of demand, followed by a summons issued to the individual — note that legally the summons does not have to be served on the individual in person, but can be served on the individual’s last known address, etc. The summons informs you of the legal action being taken and allows you 10 days to defend the matter.

Failure to attend to the matter will result in the court granting judgement by default. The judgement will be listed on the credit bureau system for five years or until paid in full, whichever occurs first.

DO NOTE: When an unpaid judgement is removed from a credit bureau's report after 5 years, the debt still remains collectable. Unless fully paid, a judgement remains payable and enforceable for 30 years from the day it was granted.

Yes, the only requirement is that the Debt Review Order must either have been suspended or be set aside before the High Court can make the sequestration order.

The suspension of a Debt Review Order usually occurs after non-payment of the monthly instalment for 2 months. We can also assist you in giving written notice that no further payments will be made in lieu of the pending sequestration application.  

It all depends on whether the divorce is uncontested or not. An uncontested divorce is the most cost-effective solution for all parties concerned, but might not be your best option. Usually, the couple enters into settlement negotiations on points in dispute and once the Settlement Agreement has been signed by both parties, an uncontested divorce can be enrolled and finalized. The entire process can take as little as 6 weeks, provided the court roll is up to date.

If a divorce is contested and the parties cannot settle or at least reach a settlement, the process can become very expensive and easily that up to 3 years - as a result most contested divorces do settle long before they go on trial.

Legal Separation does not exist in South Africa. Even if you are no longer living with your spouse and leading separate lives, you are still legally married in terms of South African law until you get a divorce.

This means that if you're married in community of property, your spouse can proceed (with or without your knowledge)  to incur debt for which creditors may hold you liable. Any judgment against your spouse may be enforced against you as well for the duration of your marriage. 

No. We do not offer DIY divorce packages as we simply don't encourage pursuing a divorce without proper consultation with an attorney. Most of the DIY options used, eventually end up with an attorney who then must deal with unforeseen issues and unintended consequences.

We do, however, offer various options to save clients money - it actually comes down to the less the couple fight, the cheaper their divorce will be. We, therefore, urge you to be cautious of using online divorce packages simply to save money, it may cost you dearly in the end.

In South African law, a Rule 43 application in the High Court or Rule 58 application in the Regional Court is the mechanism used to claim interim maintenance pending divorce being finalized.

This is supposed to be a quick, effective, and cost-saving measure to help an applicant.

You can secure the following relief with a Rule 43 / Rule 58 application -

Rule 43/58 deals with many of the issues that will ultimately be dealt with in the final divorce action, but is an interim solution and such an application can be brought:

Often a wife may not have access to funds to pay for her own legal costs. In order to level the playing fields, our courts have created a mechanism for a claim for a contribution to legal costs.

Rules 43(1) and (6) clearly provide a mechanism whereby a party can claim a contribution to legal costs during the divorce proceedings. The reasoning is that an applicant must be put into a position to present his/her case adequately and, for example, if one party embarked on litigation on a luxurious scale by paying exorbitant amounts to his attorneys, a court will assist the other party.

ln exercising its discretion in the determination of the amount of the contribution towards costs to be awarded, the court is bound by section 9(1) of the Constitution, Act 108 of 1996, to guarantee both parties the right to equality before the law and equal protection of the law - the equality of arms.

Being married with accrual is in our opinion the most appropriate and ideal system. A successful marriage is in fact based on equality and a partnership. Upon dissolution of the marriage, whether it is by death or divorce, the net values of the estates of each spouse must be determined separately and the larger estate must transfer an amount equal to half of the difference, to the smaller estate. The accrual system does not apply automatically to all marriages out of community of property.

For the accrual system to apply, the ANC must be drafted in a certain way. The accrual system incorporates a calculation that is applied when the marriage is dissolved by divorce. The spouses will share the assets during the course of their marriage based on a particular calculation when the marriage is terminated.

There are certain assets that will not be taken into account when determining the accrual (and cannot be included in the calculation of the net value of the estate):

The fact that a Trust’s assets are a trust’s assets does not automatically exclude those trust assets from an accrual determination.

The court may pierce the corporate veil of the Trust if the trust is in fact the alter ego of the donor/trustee. This means that the Court can declare that the Trust assets form part of the accrued estate.

Where a spouse has transferred assets in his/her name into a trust, in order for the court to take such assets into account, there must be evidence first that the party in question controlled the trust, and second that, but for the trust, he/she would have acquired and owned the assets in his/her own name.

Generally, the Pension Fund / Provident Fund is the largest asset in the divorce next to the marital home. The clause relating to the allocation of the Pension Fund in divorce Settlement Agreement must be drafted by an attorney who specialises in Divorce Law as the Pension Funds are incredibly strict about wording, and they will not hesitate to reject a claim if the clause is not correct. Such a mistake will result in substantial costs being incurred by the claimant as the matter will have to be redrafted and resubmitted to court.

Section 7(7) of the Divorce Act provides that a person’s pension interest or interest in an annuity fund will be taken into account for the calculation of their estates. The interest is deemed to be an asset in their estate, even though it is not yet payable. The important relevant provisions that deal with the allocation of unaccrued pension benefits to a non-member spouse upon divorce are contained in the Divorce Act and in the Pension Funds Act 24 of 1956. (Financial Services Laws General Amendment Act changes Living Annuities and divorce)

If couples are married or in a civil union in community of property, each partner will have a claim against the other’s pension fund. The claim will be for half of the pension interest on the date of divorce. Where couples are married out of community of property with the accrual, the spouse’s pension fund value will be taken into consideration in order to determine the value of his/her estate for purposes of the accrual calculation only.

There is no claim against the Pension Fund where couples are married out of community of property without the accrual. The definition of “pension interest” is to be read as including the after-tax withdrawal benefit ( as defined in the rules of the preservation fund) that would be payable to a member if he or she had opted to take a total withdrawal benefit as at the date of divorce.

The value of a pension interest is determined by definition in the Divorce Act read with the rules of the particular Pension Fund. A Retirement Annuity is not a “policy” and cannot be ceded.

We can assist you no matter where you're located nationally or abroad, as long as you have access to the internet. We have built a national network based on longstanding relationships with specifically chosen correspondents, situated in close proximity to every High Court, to ensure our clients' access through our network.

We also have at least one preferred advocate practicing at each of the High Courts, which we can brief directly, or consult with virtually via Skype, Zoom, Teams, Whatsapp, Meet, or Duo to ensure that we can attend to your needs, without going through a third party.

We offer a free 15-minute consultation on matters we specialise in, to assess your case, advise you on your options and make a determination as to how we can best assist you. If the consultation proceeds beyond this point, we will first discuss and inform you of our tariffs going forward.

Our tariffs will firstly be based on the type and complexity of the relevant matter, then the merits involved with regards to the legal aid sought, and lastly the anticipated time and resources to be allocated to the matter, to taking into account the individuality of the client involved.

Although a face-to-face meeting is always more intimate, we are quite able and comfortable dealing with clients by telephone, email, or via virtual meetings, mostly using Whatsapp, Zoom, and Skype.

We have noted that virtual meetings tend to be much more effective and to the point than the usual physical face-to-face meetings we were so used to prior to the Covid-19 pandemic and there's also no risk of infection.

This being said, we are always willing to accommodate a face-to-face meeting at our office and have taken various precautions to ensure it remains a safe environment for our staff and our clients.

Yes, you can. However, the process will vary depending on:

We, therefore, offer a free analysis of the company in order to advise our clients on the correct strategical process. 

No. You can change your marital regime at any time after your marriage, provided that you comply with the requirements. 

As the process requires an application to be made to the High Court in order to obtain consent for the change, it can be quite costly, in addition to which:

Once the High Court granted consent, the Notarial Contract must be registered within a set time-frame (usually 3 months), or else the consent will lapse.

In short - No. Recently, our Constitutional Court, in having to consider whether a post-nuptial marriage contract concluded without the supervision of the court was valid, found that home drafted contracts were not valid and enforceable if not sanctioned by a court order.

The Court confirmed that the only way married couples could change their marital regime was to approach the courts in compliance with Section 21 of the Matrimonial Property Act and that any contract entered into without the supervision of the court, would not be enforceable.

Therefore your home contract will not be valid and enforceable and it does not change your matrimonial property regime.

No. The motion process is followed and therefore only affidavits are submitted and you will not be required to appear in court personally. 

We appoint correspondents to attend proceedings on our behalf and an advocate will be appointed to argue your case on your behalf. If the court has a query or requires additional information, the case will be postponed in order for a supplementary affidavit to be submitted.

Yes - provided the account has no overdraft facilities.

We always recommend that our clients open a new saving account with a debit card, as soon as possible AFTER their sequestration, at a financial institution where they don't owe any money. 

Any financial institution that is owed, may freeze your bank account when they receive a copy of your sequestration order. This is done to preserve any funds that pre-date the sequestration order.  

Any Retirement Annuity is protected by legislation and will not form part of your insolvent estate. This also includes any funds paid to you in terms of a claim for personal injury. 

However, policies that are ceded to creditors, will serve as security for payment of such creditor's claim.

In some cases it's possible. However, it will depend on a number and combination of facts, which include: 

If your vehicle is fully paid - it will form part of the assets of your estate and if it's not of significant value, the appointed trustee may sell it back to you on a monthly instalment plan.

If your vehicle is financed in terms of a Lease or Rental Agreement, it will not form part of your insolvent estate and the Financing Creditor has the option to allow you to keep possession of the vehicle, provided you keep on paying for it.

However, if your vehicle is financed under a credit agreement such as an Instalment Sales Agreement, your vehicle will form part of the assets of your estate. If this is the case, you will most likely not be able to keep the vehicle unless the amount still due is relatively low in relation to the value of the vehicle. 

In most cases, the Trustee will allow the relevant creditor to remove and sell the vehicle on auction. The proceeds from the sale will be set off against the creditor's claim, once the relevant costs involved have been settled.

Should you lose your vehicle we can refer you to a Rent-to-Own company that will allow you to rent a vehicle of your choice, through them. It wouldn't matter whether or not you were sequestrated or if your credit record is impaired. With the Rent-to-Own option, you still become the owner of the vehicle once it's been fully paid. 

A sequestration order will have the following effect on your spouse's estate:

The two individual estates that existed before your marriage, became one joint estate when you got married. Therefore, the combined joint estate is sequestrated and both spouses receive the status of insolvent.

Married out of community of property:
If a marriage out of community (with or without accrual) exists, Section 21 of the Insolvency Act provides that the separate assets of both spouses may vest in the Master and later the trustee when either spouse is placed under sequestration.

Section 21 places the burden of proof on the solvent spouse that all goods in his or her estate is indeed his or her property, and therefore excluded from the debtor’s estate.

Yes - you will be allowed to trade as a Sole Proprietor. Do note that there are certain  limits imposed by various legislation, such as:

Although section 23 of the Insolvency Act, 1936 states that an insolvent may follow any profession or occupation or enter into any employment, for the duration of his sequestration he may not, without the written consent of his trustee, carry on, or be employed in any capacity or have any direct or indirect interest in, the business of a trader who is a general dealer or a manufacturer.

Section 23(3) of the Insolvency Act, 1936 states that an insolvent may follow any profession or occupation or enter into any employment, but he may not without his trustee' written consent carry on, or be employed in any capacity or have any direct or indirect interest in, the business of a trader who is a general dealer or a manufacturer.

An insolvent, while sequestrated,  may also not

No. Insolvency is a civil matter in South Africa, not a criminal and therefore you will qualify for a visa and your immigration will be legal.

 I can offer a general perspective. In South Africa, insolvency law primarily focus on the assets of the insolvent individual. If the vehicle is registered in your sister-in-law's name, it will  not be considered part of your estate in the event of insolvency.  

However, the specifics can vary, and it's crucial to consult with one of our attorneys that specialize in Insolvency Law. Factors like the nature of the payments your husband is making and any agreements in place could influence the outcome.

 If the vehicle is financed in your sister-in-law's name, she will become the eventual owner. Currently such ownership will vest in the financial institution (bank) that financed the vehcile, and it will also not form part of your insolvent estate.