11 December

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The Claim Based On Adultery

I have written about this before but recently came to realise that many people still didn’t know an innocent spouse cannot sue a third party for damages resulting from adultery. In this article I set out the courts reasoning for the change. In the landmark case, an ex-husband, Mr DE, sued Mr RH for damages on the basis that Mr RH had an extra-marital affair with Mr DE’s former wife. His claim was based on the general remedy for the infringement of personality rights, claiming insult to his personality, and the loss of comfort and society from his spouse. Mr DE...

11 November

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Prohibited Marriages

Posted by Jenna Jones

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During the holidays my partner and I got to spend some time on the road and we ended up having a conversation about work, as we do, but this time we weren’t talking about divorce law - we were talking about marriage. I was telling him the different types of illegal marriages, some of which he found rather interesting and said I should share it with you. Below I set out the two types of illegal marriages, one through blood and the other through marriage; Relationships by blood If the parties intending to marry are related to one another within certain degrees of...

11 October

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Amending Settlement Agreements

Posted by Jenna Jones

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The majority of the divorces I deal with, do not end up at trial and the parties end up settling. This means that the parties sign a settlement agreement, which becomes part of the divorce order. Section 8(1) of the Divorce Act states that, a maintenance order or an order in regard to a child, may at any time be changed by a court, on agreement between the parties or on application by one party’s if the court finds that there is sufficient reason to do so. However, Section 8 does not mention what can happens to the party’s patrimonial consequences, and...

11 October

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The Importance Of Parenting Plans

Posted by Jenna Jones

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Parenting plans are written agreements between separated or divorced parents, which assist with their parental responsibilities and rights in respect of their child.A parenting plan assists in resolving future conflicts, and obviously the less conflict for the family during this difficult time, the better.Parents should consider all the factors of the child’s life when drafting the parenting plan and it should have enough detail to be helpful, yet enough flexibility to be realistic.The child can also add input, the age and maturity of the child will determine the level of input given, but most importantly the parenting plan must always...

11 September

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The Divorce Process In South Africa

Posted by Jenna Jones

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Where do I even start? The divorce process may seem very scary and overwhelming to some, but it does not need to be. In this article I will try to simplify the divorce process so that you can feel more comfortable with what happens behind the scenes. Firstly, you can either get divorced in the Regional Court of the Magistrate Court, or in the High Court. In South Africa, the marital regime of the parties determines how the parties assets will be divided at the end of the marriage. A divorce starts with a SUMMONS AND PARTICULARS OF CLAIM which is issued by...

11 August

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Surrogacy In South Africa

Posted by Jenna Jones

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In today’s world 30 is viewed as the new 20 and 40 as the new 30, but what is happening on the outside of our bodies is very different from what is going on, on the inside. Fertility declines after 35 and then rapidly after 40. After years of trying to conceive, and after failed IVF treatments, surrogacy, although expensive, is an option to having a child of your own. Non-profit surrogacy is legal in South Africa however there are certain legal criteria, obligations and requirements which need to be met.Firstly, a Surrogate Motherhood Agreement needs to be drafted and...

11 July

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The Consequences Of Not Having A Valid Will

Posted by Jenna Jones

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As the saying goes there are two things in life that are guaranteed: DEATH AND TAXES. Although most people don’t like talking about either of these topics, they are both very important topics which need to be discussed. In this article I will only discuss the former, and the consequences of not having a valid will. It is concerning that the majority of South Africans do not have a valid will, which can be very traumatic for the family left behind.If you die without a valid will you lose the right to decide what happens to your estate after death,...

11 June

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Maintenance: When A Parent Fails To Pay

Posted by Jenna Jones

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When it comes to maintaining a child, it is a well-established principle in South African law that both parents have a duty to maintain a child according to their respective means.The amount of maintenance due to a child from his/her parents is determined by the means of the parents and the needs of the child. The obligation attaches to both parents jointly, but their respective shares of the maintenance obligation is apportioned according to the financial resources and circumstances of each of parent. The parties can easily work out this amount by completing either of these maintenance calculators. One should...

11 May

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Divorce Turns Into A Fight About One Thing: Money

Posted by Jenna Jones

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Going through a divorce is hands down one of the toughest events of anyone’s life. You are emotionally drained and even getting up in the morning can be a mammoth task.The majority of divorce cases turn into a fight about one thing; MONEY. I am a firm believer in trying to resolve the divorce as amicably and as quickly as possible. In some instances, there is a need to fight but when the separation has taken its toll on the entire family, the last thing anyone wants to do is fight about money.The divorce process can appear to be daunting...

11 April

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Thinking of Emigrating With Your Minor Child

Posted by Jenna Jones

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We can all agree that the current political, social and economic status of South Africa has been rather uncertain lately and I am sure many people have considered emigrating. However, divorced families who wish to leave the country need to adhere to the law when taking their children away from a custodial parent and must not take the law into their own hands. Currently, South Africa is a signatory to The Hague Convention on the Civil Aspects of International Child Abduction. The aim of the convention is to ensure the prompt return of children back to their country of habitual residence,...