The Impact of Family Dynamics on Wills in South Africa

Creating a Will is an essential part of estate planning, ensuring that your assets are distributed according to your wishes after your passing. However, when it comes to drafting a Will, the complexities of family dynamics can often lead to tension, disputes, and unintended consequences. In South Africa, where diverse cultural practices and blended families are common, understanding the potential impact of family relationships on your Will is critical for effective estate planning.

Understanding the Role of Family Dynamics

Family dynamics encompass the relationships and interactions between family members, which can be influenced by factors such as cultural traditions, past conflicts, financial dependencies, and expectations. When it comes to Wills, these dynamics can significantly affect how your estate is perceived and contested by those you leave behind.

In South Africa, the concept of “ubuntu” – the belief in a universal bond of sharing and compassion that connects all humanity – often influences family expectations regarding inheritance. This can create challenges when personal wishes in a Will do not align with the collective expectations of family members.

Common Issues Arising from Family Dynamics

Blended Families: With the rise of blended families, where one or both partners have children from previous relationships, the distribution of assets can become complicated. Children from different marriages may have varying expectations of inheritance, leading to potential disputes if they feel they have been unfairly treated.
Cultural and Traditional Expectations: In some South African communities, cultural practices play a significant role in inheritance. For example, in certain African traditions, the eldest son may be expected to inherit the family’s property. However, this may conflict with the testator’s (the person making the Will) wishes to distribute assets equally among all children, regardless of gender.
Dependence on the Testator: Family members who are financially dependent on the testator may expect a larger share of the inheritance. This can create tensions, especially if the will provides for other beneficiaries or charitable donations, leaving dependents feeling neglected.
Historical Conflicts: Unresolved family disputes, such as sibling rivalries or estranged relationships, can resurface during the reading of a Will. If not addressed during the drafting process, these conflicts can lead to Will contests, delaying the administration of the estate and causing emotional distress.
Unequal Distribution of Assets: In cases where assets are not distributed equally among beneficiaries, it is essential to clearly explain the reasoning behind the decision in the Will. This can help prevent feelings of resentment and reduce the likelihood of legal challenges.

Tips for Addressing Family Dynamics in Your Will

Open Communication: Consider discussing your wishes with your family members before finalising your Will. Open communication can help manage expectations and reduce the chances of disputes after your passing. It also provides an opportunity to explain the reasons behind your decisions, particularly if they deviate from cultural or traditional norms.
Consult with a Legal Professional: Given the potential complexities of family dynamics, it is advisable to seek the guidance of a legal professional experienced in estate planning. They can help you navigate sensitive issues, ensure that your will is legally sound, and minimise the risk of it being contested.
Include a No-Contest Clause: To deter beneficiaries from contesting your Will, you may include a no-contest clause. This clause stipulates that any beneficiary who challenges the will loses their right to inherit. While this may not completely prevent disputes, it can serve as a deterrent.
Regularly Update Your Will: Family dynamics can change over time due to marriage, divorce, births, and deaths. Regularly reviewing and updating your Will ensures that it accurately reflects your current wishes and relationships, reducing the likelihood of conflicts.
Consider a Letter of Wishes: While not legally binding, a letter of wishes can accompany your will to provide additional context for your decisions. This can be particularly helpful in explaining unequal distributions or the exclusion of certain individuals.

Drafting a Will is more than just a legal formality – it’s an opportunity to provide for your family and leave a legacy that respects both your wishes and the intricate relationships within your family. Taking the time to consider the impact of family dynamics can help you create a will that honours both your intentions and the unique fabric of your family.

It is ‘Wills Week’ in September, and this serves as a reminder to either create or update your will. Reach out to the LifeAssist legal team to put a basic (single income) Will in place and who can advise you on the legalities of formalising a Will, provide a guide on how to safeguard your will and choose an executor. Don’t delay – do it today!

zara2024-08-30T12:09:06+00:00

“Giving children a healthy start in life, no matter where they are born or the
circumstances of their birth it the moral obligation of every one of us”

NELSON MANDELA

Child Protection Week calls on every South African to take a stand and uphold the rights of children as articulated in the Constitution of the Republic of South Africa and Children’s Act (Act No. 38 of 2005).

Let us be challenged to look beyond our individual lives and engage in a united effort to safeguard our children. The call to action is clear and urgent: every South African is tasked with ensuring that our children do not suffer abuse or become victims of human trafficking. This appeal is not just to parents and guardians but to neighbours, teachers, community leaders, and indeed, anyone who can make a difference.

The campaign promotes resources, like 24-hour helplines for victims of gender-based violence, like Childline South Africa, TEARS and Child Welfare South Africa.

The amended Children’s Act reflects a broader commitment to these goals by strengthening the legal framework to support the rights and wellbeing of children. The act introduces new procedures and enhanced court capabilities – ensuring that children’s issues are handled with the care and priority they deserve.

Watch a Human Rights lawyer, Rebecca, explain the amendments.

If you need to know how to get help for a child or adult who is being abused, reach out to LifeAsssist for guidance, trauma counselling, or legal advice.

zara2024-05-02T13:06:49+00:00

Are you in an abusive relationship?

Enduring violence and abuse is an unwelcome reality for many individuals in South Africa. Gender-based violence constitutes a violation of human rights, a legal offence, demanding urgent eradication. We possess the power to effect change by taking a stand and vocalising our concerns.

What constitutes abuse?

Abuse encompasses various forms of harm, such as:

Physically or sexually harming someone’s body.
Subjecting an individual to insults or threats of violence.
Engaging in sexual harassment.
Humiliating and degrading someone, either at home or in public.
Exercising control over an individual’s finances.
Impeding one’s ability to secure or maintain employment or to connect with friends and family.
Stalking, which includes following or visiting someone without consent.
Jeopardising an individual’s health or wellbeing.
Monitoring phone calls and dictating one’s movements.

How to Get the Courage to Step Out of an Abusive Relationship

Leaving an abusive relationship is an immensely challenging and courageous step to take. Here are some practical steps and considerations to help individuals find the strength and support needed to break free from such toxic situations:

Recognise the Abuse: The first important step is to acknowledge that you are in an abusive relationship. This may involve seeking guidance from a therapist, counsellor, or a trusted friend who can provide an objective perspective.
Safety Planning: Plan your exit carefully. Ensure you have a safe place to go, and let someone you trust know about your plans.
Seek Support: Reach out to friends, family, or support groups who can offer emotional support and a safe space to discuss your situation.
Legal Assistance: Depending on the situation, consult with legal professionals who can advise on issues like restraining orders, custody arrangements, and divorce.
Therapy and Counselling: Professional therapy can be incredibly helpful in understanding the root causes of the abusive relationship and in building emotional resilience.
Financial Independence: If possible, work towards financial independence. Having your own income can empower you to make choices without being financially reliant on the abuser.
Document the Abuse: Keep records of any incidents, injuries, or threatening messages. This documentation can be useful in legal proceedings.
Build a Support Network: Establish connections with organisations that specialise in helping abuse victims. They can provide invaluable resources and assistance.
Emotional Healing: Healing from the trauma of an abusive relationship is an ongoing process. Seek therapy and support groups to aid in your emotional recovery.
Remember Your Worth: Know that you deserve a life free from abuse and have the strength to overcome this situation.

Leaving an abusive relationship is a challenging journey, but it’s one that can lead to a brighter, safer future. By taking these steps and seeking the support you need, you can find the courage to step out of an abusive relationship and begin the process of healing and rebuilding your life.

If you or someone in your family needs support, please speak to a trauma counsellor at LifeAssist, so you can get the support that is needed.

Please also note these emergency numbers:

Gender-Based Violence Command Centre: Call 0800 428 428 or dial *120*7867#
Stop Gender Violence helpline: 0800 150 150
SAPS: 10111
Crime Stop: 0860 01 01 11
Childline: 116
Report any abuse of children and women to the Department of Social Development on 0800 220 250.
LifeLine 24-hour Crisis Helpline: 0861 322 322

If you’re a witness and afraid for your safety for reasons linked to being a witness, you can apply for witness protection. Contact the Witness Protection Unit at the National Prosecuting Authority (NPA) on 012 845 6000.

zara2023-10-30T15:23:01+00:00

Do you have a Last Will and Testament?

Life is unpredictable, and none of us can foresee what lies ahead. One thing we can be certain of is that we will die, so it is best to prepare for this eventuality, no matter our age or life stage. While this topic might not be the most pleasant to contemplate, having a Last Will and Testament (Will) in place is among the most crucial steps you can take to leave a lasting legacy and a testament to your concern for the wellbeing of your beneficiaries in your absence.

A Will is a legal document that outlines your desired distribution of assets and the management of your affairs after your passing. Contrary to a common misconception, creating a Will doesn’t have to be an expensive process. There are various ways to create a legally binding Last Will and Testament.

Should you pass away without a Will (intestate), South African law will dictate the distribution of your estate. The Intestate Succession Act defines a specific order of inheritance, which might not align with your intentions. This can lead to stress, unnecessary costs, delays, and complexities around guardianship, especially concerning minor children.

The Significance of a Will

A Will serves several vital purposes, offering peace of mind to both you and your loved ones:

Clarity and Control: A Will allows you to unambiguously communicate your desired asset distribution. Without one, intestacy laws dictate distribution, potentially conflicting with your wishes.
Protection of Loved Ones: If you have dependents, a Will empowers you to designate guardians for your minor children. This ensures their care by individuals you trust, rather than leaving such decisions to the courts.
Minimisation of Family Disputes: A meticulously drafted Will can help prevent family conflicts arising from uncertainty about your intentions.
Efficient Estate Administration: A Will streamlines the process of settling your estate, reducing stress and time for your loved ones during a difficult period.
Documentation of Your Estate: A Will Informs beneficiaries about all assets, including policies, retirement funds, investments, savings donations and or benefits from the estates, and exclusions applicable to that specific benefits.
Facilitation of Charitable Giving: A Will empowers you to make charitable bequests to causes or organisations that you cherished.

Creating a Valid Will in South Africa

Crafting a legally valid Will in South Africa involves adhering to specific legal criteria, ensuring the accurate execution of your wishes posthumously (after your death). Follow this step-by-step guide to ensure that your Will is valid:

Age and Capacity: You must be at least 16 years old to create a valid Will in South Africa. Additionally, you must be of sound mind and understand the implications of creating a Will. This means you should be aware of the nature of your assets and the consequences of distributing them.
Formal Requirements: To ensure the formal validity of your will, follow these steps:
In Writing: Your Will must be in writing, either handwritten or typed.
Signed: Sign the Will at the end of the document and initial each page other than the signed one.
Witnesses: Have two competent witnesses (who are not beneficiaries or their spouses) present when you sign the Will. Witnesses must sign the Will in your presence.
Witness Requirements: Select witnesses who understand the importance of their role in validating the Will. They should be adults, mentally competent, and able to testify if necessary. Witnesses must sign the Will in each other’s presence and in your presence as the Testator (male) or Testatrix (female).
Clear and Specific Language: Ensure that your Will is clear, concise, and specific. Ambiguities or vague language can lead to misunderstandings or disputes among beneficiaries.
Appointing an Executor: Designate an executor in your Will who is responsible for administering your estate. This individual will ensure that your assets are distributed as per your wishes. Choose someone trustworthy and capable, and discuss your intentions with them. You can appoint an individual or an institution. If you appoint an individual, your Will can grant them the right to elect another party to assist them with the executorship of your estate. When discussing executorship through an institution, it is important to understand the fees that will be charged. The Testator must also indicate whether the executor must pay any security or exempt them from doing so.
Naming Beneficiaries: Clearly identify each beneficiary by their full name and provide enough detail to distinguish them. The ID number must also be included, as it’s a distinct number that is not shared with anyone. This prevents confusion or challenges regarding your intended beneficiaries.
Review and Update: Regularly review your Will, especially after significant life events such as marriage, divorce, births, deaths, or changes in your financial situation. Update your Will as needed to reflect your current circumstances and wishes.
Professional Assistance: While you can create a Will on your own, consulting a qualified attorney ensures that your will adheres to legal requirements and addresses potential complexities. Legal professionals can provide guidance on proper wording, help mitigate tax implications, and offer advice based on your unique situation.
Safekeeping: Store your Will in a secure and accessible location, and inform your executor or a trusted family member where it can be found. Using a safe deposit box, a lawyer’s office, or a registered Will repository are standard options.

Creating a Will should not be seen as dwelling on the end of life, but rather, it should be about ensuring that your legacy lives on and your wishes are carried out.

LifeAssist offers free legal advice through LifeAssist to guide you on processes and discuss the options that can be applied to your personal situation. LifeAssist cannot be appointed as an Executor and does not provide advice on Trusts.

Don’t delay; create your Will today!

zara2023-08-28T15:45:21+00:00

Child Custody after Divorce or Separation: Knowing the Basics

When parents make the tough decision to separate or divorce, one of the initial concerns is which parent will have custody of the children. In the past, it was common for only one parent to have full custody while the other parent received visitation rights. However, recent years have brought significant changes to South Africa’s laws regarding children of divorced or separated parents.

Here are some essential points that parents should be aware of:

The best interest of the child: Our constitution places great emphasis on the well-being of the child when making decisions about their care and upbringing. This means that the child’s welfare should always be the top priority and outweighs the parents’ opinions or desires.

Joint custody: South African law encourages both parents to share the responsibilities and care for their children whenever possible. This means both parents should be involved in making important decisions about the child’s upbringing, and that the child can take turns to live with either parent or spend equal time with both.

Parenting plans: When parents separate or divorce, a parenting plan should be drawn up to outline the child’s residence; visitation schedule; decision-making; maintenance; education; healthcare and religious upbringing etc. These plans are helpful tools to prevent conflict, ensure stability and facilitate smooth transitions between parents.

Mediation: Instead of spending a lot of money and time on court battles to win custody, parents should consider mediation as an alternative. Mediation involves a neutral professional who assists the parents in discussing their children’s futures and reaching a mutually acceptable agreement.

Child Maintenance: Both parents have to share financial responsibility for the child’s upbringing according to their respective abilities and the child’s needs. All costs relating to a child’s care should be listed, divided by the parents, and included in the parenting plan. If parents can not come to a mutual agreement about money, they can approach the Maintenance court for a court order that specifies each parent’s financial obligations.

Visitation (or “Contact”): Children have the right to maintain a relationship with both parents (unless proven by the court not to be in the best interest of the child for one parent to have contact with the child). A parent should create opportunities for, and encourage their children to see the other parent regularly, within reasonable boundaries. It should be noted that one parent cannot deny the other parent contact with the child based solely on non-payment of maintenance.

Children’s wishes and feelings: Our Children’s Act emphasises that children have the right to be listened to and heard. Their views and preferences about arrangements after their parent’s divorce or separation matters should be taken into account to ensure they are happy with the outcome.

Unmarried biological fathers: While biological mothers and married biological fathers have automatic full parental rights and responsibilities, unmarried biological fathers do not. However, there are various ways for unmarried biological fathers to assert their full rights, such as approaching the Office of the Family Advocates or Social Worker for mediation; or approaching the court as a last resort for declaratory order of their full rights and responsibilities towards the child.

Going through a divorce or separation can be very difficult for all members of the family. If you have questions about court proceedings, maintenance, contact with the child or custody, it can be beneficial to consult with a family law attorney for an expert opinion based on your specific circumstances. Reach out to LifeAssist to get connected with a Legal consultant.

zara2023-06-30T10:18:19+00:00

Why is a Will important?

A last will and testament is a legal document that lets you decide what happens with your belongings after you die. Yet, many people don’t have one. You may think you don’t have enough assets, or assume that your loved ones will automatically get everything you own. But this isn’t always true.

Save time, money, and stress for your loved ones

When you die without a will, you leave important decisions to the local courts. This can become a long, drawn out, expensive process causing trouble for your loved ones. For example, the courts may decide to sell your house to divide the proceeds to your family, leaving your current spouse without a home.

Streamline this process with a will and choose someone responsible to handle your estate (called an “executor”). The executor’s responsibilities are to make sure your wishes are carried out and all your affairs are taken care of. Without a will, your family will have to guess what your final wishes were. If there are complicated family dynamics, they won’t always agree. The lack of clarity may cause tensions which can last a lifetime.

The power of choice

With a will, you decide who gets your assets, and who to exclude, for example, an estranged spouse. A surviving parent will usually be given sole legal custody if one parent dies. But if both parents pass, a guardian will need to be responsible for all your children’s daily needs, including food, housing, healthcare, education, and clothing. If you don’t nominate a guardian in your will, a court will have to choose one for you. This could mean that someone you might not want, would be raising your kids. You can also make sure that a trusted person takes care of your pet after you die and even leave them funds to provide for your pet’s care. You may also decide to leave a positive mark on the world after you pass, by donating funds or assets to charities or causes that you believe in. You can include this legacy in your will.

It’s simple

It’s easy to make a will and many companies, such as banks, or insurance firms offer the service free of charge. You don’t necessarily need professional help to prepare a valid will unless you have a large or complex estate. Once you’ve drafted the document, it needs to be witnessed, usually by two adults of sound mind who know you well. Make sure that your family or executor knows where your will is and update it over time as your needs and the people in your life change. This will give you peace of mind.

Call LifeAssist to speak to a legal specialist to help you draw up a will. This service is at no cost to you.

zara2022-10-31T06:10:17+00:00

South Africa has one of the highest gender-based violence and femicide (GBVF) rates in the world. While the country has many laws that should, in theory, protect women from abuse and offer them protection and justice when they are victimised, the reality on the ground is much different.

REBECCA SIBANDA – Human Rights Lawyer explains

(listen to the podcasts)

Introduction of the new laws

The Criminal and Related Matters Amendment Act

The Criminal Law (Sexual Offences and Related Matters) Amendment Act

The Domestic Violence Amendment Act

South Africa Passes Important Gender-Based Violence and Femicide Laws

To strengthen the country’s efforts in fighting GBVF, on the 28^th of January 2022, South African President, Cyril Ramaphosa signed three GBVF bills into law. These laws are the Criminal and Related Matters Amendment Bill, the Criminal Law (Sexual Offences and Related Matters) Amendment Bill and the Domestic Violence Amendment Bill. As their names suggest, these Bills are updated versions of the originals.

The passing of these laws is a positive sign for South African women and children – the groups most vulnerable to abuse and femicide. These amendments are more victim centred and were created to provide better and more effective protection for victims of GBVF. They were first introduced in Parliament in 2020 in response to public demand that the government and police start taking GBVF cases more seriously. This is especially after the horrible rape and murder of University of Cape Town student, Uyinene Mrwetyana in August 2019, by a South African Post Office employee.

So, what exactly do these new laws change?

The Criminal and Related Matters Amendment Act

This law comes in response to public outcry against accused offenders being granted bail too easily, and perpetrators only serving minimum sentences for serious crimes. Basically, the law makes it more difficult for abusers to escape punishment.
Now, people accused of GBVF will only be granted bail under exceptional circumstances. If these requirements are met, the court must consider a number of factors before granting bail, including whether or not the victim would feel safe with the decision. Also, the victim will be heard by the court before bail is decided – something that did not happen before.
This law aims to address GBVF and offences committed against vulnerable people and provides for additional procedures to reduce secondary victimisation of vulnerable individuals in court proceedings.
For example, someone can give evidence on behalf of a victim or through audio-visual links in some cases.

The Criminal Law (Sexual Offences and Related Matters) Amendment Act – improve the country’s prevention of sex crimes

Among other key changes, this Act introduces a new offence of sexual intimidation. This means that if you are threatened by someone’s behaviour, verbally or otherwise, you can report it and pursue legal action.
It also expands the list of people who must be protected to include more vulnerable people, like people with physical, mental or intellectual disabilities and those over 60 years of age who, for example, receive community-based care and support services.
The Act addresses paedophiles by increasing the reporting duty of those who suspect that a child is the victim of a sexual offence.
Finally, it extends the scope of the National Register for Sex Offenders to include the details (name, address) of all sex offenders and not just those who hurt children and persons with mental disabilities.
Before a sex offender’s details can be removed from the Register, they must remain on it for 20 years.

The Domestic Violence Amendment Act

This law expands the definition of domestic violence to include victims of assault while engaged or dating. People in customary relationships, and those in actual or perceived romantic, intimate, or sexual relationships regardless of their length are also protected by this law. This means that if you are hurt by someone who you’ve been casually dating, or have been married to for years, you would be able to make a case against them under the Domestic Violence Act.
This extended definition would also include older citizens who have been abused by family members.
It also includes new definitions, such as ‘controlling behaviour’ and ‘coercive behaviour’, and expands existing definitions, such as “domestic violence”, to include spiritual abuse, elder abuse, and/or exposing/subjecting children to certain of listed behaviours.
A critical change for victims is that women can now apply for protection orders 24-hours a day. Also, victims don’t have to be physically present in court when a magistrate grants an interim protection order. The Act also introduces online applications for protection orders against acts of domestic violence. The order will then be sent to the accused via email.
The protection order would also be added to a central digital depository that houses other orders and cases made against the same person. Although the online protection order process would be a game changer, it’s important to note that it may not serve everyone fairly, as it relies heavily on whether or not you have the resources to apply for an order online – e.g., access to the internet.
In addition, it imposes obligations on functionaries in the Departments of Health and Social Development to provide certain services to victims of domestic violence.

The passing of these new laws should make it more difficult for perpetrators to evade justice, and for victims to have access to true justice. It remains to be seen whether those charged with enforcing these laws will execute their responsibilities as they should.

zara2022-02-11T09:38:20+00:00

South Africa Passes Important Gender-Based Violence and Femicide laws

The passing of these laws is a positive sign for South African women and children – the groups most vulnerable to abuse and femicide. These amendments are more victim-centred and were created to provide better and more effective protection for victims of GBVF. They were first introduced in Parliament in 2020 in response to public demand that the government and police start taking GBVF cases more seriously. This is especially after the horrific rape and murder of University of Cape Town student, Uyinene Mrwetyana in August 2019, by a South African Post Office employee.

So, what exactly do these new laws change?

The Criminal and Related Matters Amendment Act

This law comes in response to public outcry against accused offenders being granted bail too easily, and perpetrators only serving minimum sentences for serious crimes. Basically, the law makes it more difficult for abusers to escape punishment.
Now, people accused of GBVF will only be granted bail under exceptional circumstances. If these requirements are met, the court must consider a number of factors before granting bail, including whether or not the victim would feel safe with the decision. Also, the victim will be heard by the court before bail is decided – something that did not happen before.
This law aims to address GBVF and offences committed against vulnerable people and provides for additional procedures to reduce secondary victimisation of vulnerable individuals in court proceedings.
For example, someone can give evidence on behalf of a victim or through audio-visual links in some cases.

The Criminal Law (Sexual Offences and Related Matters) Amendment Act – improve the country’s prevention of sex crimes

Among other key changes, this Act introduces a new offence of sexual intimidation. This means that if you are threatened by someone’s behaviour, verbally or otherwise, you can report it and pursue legal action.
It also expands the list of people who must be protected to include more vulnerable people, like people with physical, mental or intellectual disabilities and those over 60 years of age who, for example, receive community-based care and support services.
The Act addresses paedophiles by increasing the reporting duty of those who suspect that a child is the victim of a sexual offence.
Finally, it extends the scope of the National Register for Sex Offenders to include the details (name, address) of all sex offenders and not just those who hurt children and persons with mental disabilities.
Before a sex offender’s details can be removed from the Register, they must remain on it for 20 years.

The Domestic Violence Amendment Act

This law expands the definition of domestic violence to include victims of assault while engaged or dating. People in customary relationships and those in actual or perceived romantic, intimate, or sexual relationships regardless of their length are also protected by this law. This means that if you are hurt by someone who you’ve been casually dating, or have been married to for years, you would be able to make a case against them under the Domestic Violence Act.
This extended definition would also include older citizens who have been abused by family members.
It also includes new definitions, such as ‘controlling behaviour’ and ‘coercive behaviour’, and expands existing definitions, such as “domestic violence”, to include spiritual abuse, elder abuse, and/or exposing/subjecting children to certain listed behaviours.
A critical change for victims is that women can now apply for protection orders 24-hours a day. Also, victims don’t have to be physically present in court when a magistrate grants an interim protection order. The Act also introduces online applications for protection orders against acts of domestic violence. The order will then be sent to the accused via email.
The protection order would also be added to a central digital repository that houses other orders and cases made against the same person. Although the online protection order process would be a game-changer, it’s important to note that it may not serve everyone fairly, as it relies heavily on whether or not you have the resources to apply for order online – e.g., access to the internet.
In addition, it imposes obligations on functionaries in the Departments of Health and Social Development to provide certain services to victims of domestic violence.

zara2022-02-11T07:40:19+00:00

When someone dies at home

Dealing with the death of someone at home can be daunting as you are confronted not only with the passing of someone you cared for, but also have to deal with the arrangements that go with it.

Much of what will happen after the death of someone at home is regulated by law. This provides helpful guidelines that make it easier on those who have to take care of the arrangements after the death of someone who dies of natural causes.

Steps to take

The first step after the death is to decide which funeral service / director to use and to have the deceased moved to a suitable mortuary. It is entirely up to the family of the deceased to decide which funeral service to use.
The death must be reported to the Department of Home Affairs, also important to enable for the deceased estate to be administered. The Notification of Death form must be completed by a doctor or pathologist and handed in at the Department of Home Affairs, who will issue a Death Certificate within weeks. The funeral service would normally take care of this on behalf of the family.
If the cause of death is unknown, the funeral service can arrange for a private autopsy to be done by a pathologist at the mortuary to determine the cause of death and issue the notice of death.
It is helpful to decide who will identify the body, as this has to be done in order for the Notification of Death to be issued. Anyone familiar with the deceased can do this. The person who does the identification would need proof of identity, preferably in the form of an Identification Document (ID) or a valid passport, as well as proof of identity (ID) of the deceased.
If the body is to be cremated, do not be alarmed if mention is made of a further examination of the body by a second doctor. This is required by law to confirm that no reason exists for the body to not be cremated. The funeral service will again take care of this.

Sources
funeralguide.co.za
www.dha.gov.za/

2021-03-12T10:33:19+00:00

Which marital regime to choose before getting married?

Are you getting married soon? There are far-reaching decisions to be made before this important day.

Although many couples are initially caught up in the romance of a wedding and a happily ever after life together, one needs to look at the marital options available in a logical and considered manner. The options should be considered prior to marriage, as changing the marital regime during the marriage involves cost and potential conflict. One needs to look at protecting your assets and however pessimistic it may seem, the consequences of a dissolution of the marriage, whether by death or divorce.

What are the options?

South Africa has two basic marital regimes: Firstly, a marriage in community of property and secondly, a marriage out of community of property. A marriage out of community of property is further subdivided into two more options, namely with or without the accrual system.

In community of property

If you should do nothing before getting married, you will automatically be married in community of property. The effect of this is that the assets and liabilities of both spouses will fall into one communal pot. This regime could suit a spouse marrying a wealthier individual and who requires no financial autonomy. The disadvantages are that a spouse is bound by the other spouse’s endebtedness thus making your assets vulnerable to creditors; both spouses are declared insolvent if the estate is sequestrated; and the executor of a deceased spouse’s estate will administer the joint estate.

Out of community of property

Should you elect to be married out of community of property, an antenuptial contract (ANC) will need to be drafted and signed prior to the wedding ceremony.

ANC without accrual

A marriage out of community of property without the accrual system will result in the complete separation of the spouses assets and liabilities during and after the dissolution of the marriage. This is an option for spouses who wish to retain their separate assets and desire financial autonomy. The disadvantage is that a spouse will have no claim to a share in the other spouse’s estate on dissolution of the marriage. It offers no protection to spouses who are lower earners or who contribute to the marriage by raising the children or running the household. An often overlooked disadvantage to this regime is the example of a spouse who does not own and pay for the capital assets of the marriage such as the marital home, but pays for non-capital expenses.

ANC with accrual

A marriage out of community of property including the accrual system combines the advantages and negates the disadvantages of both the previously described marital regimes. It is the latest marital regime that was legislated into law. It has the advantages of protecting your assets from your spouse’s creditors and of financial autonomy during the marriage but combines it with the advantages of a delayed community of property on the dissolution of the marriage. With the accrual system, the spouse, whose estate shows no growth or less growth on divorce or the death of the other spouse, acquires a claim against the spouse for half of the value of the difference in the growth (accrual), since the date of marriage of the two estates. This is the most equitable and practical regime for most couples.

Marrying another customary law wife

It is worth knowing that a husband in those customary marriages currently recognised in South African law, who wishes to enter into a further customary marriage, must apply to the court for the approval of a written contract regulating the future marital property system of his marriages. This is to safeguard the interests of any of the parties involved. Existing spouses and the future spouse must be joined as parties to the matter. If the existing customary marriage is in community of property or subject to accrual, the court must terminate the marital regime and divide the property.

It is obvious that thoroughly assessing the marital regimes prior to your marriage and realistically applying some logical thought to your situation will be an investment in your future happiness and financial wellbeing.

Source
Recognition of Customary Marriages Act 120 of 1998

2021-03-12T10:20:07+00:00

Your Future – Legal

South Africa Passes Important Gender-Based Violence and Femicide Laws