The free divorce starter toolkit provides you with the necessary tools to attend to the unopposed divorce on your own. The tools include a template Summons, Particulars of claim and a notice of set-down. Download the Toolkit and see if it would be of use to you. Also have a look at the following links for further assistance:
Child maintenance and child support is the right of every child. It is the duty of the parent to enforce the right should the other parent not wish to contribute. Download the Free Child Maintenance Calculator and start the process regarding child Maintenance today. You would be guided on the law and how much maintenance may be claimed. Also have a look at the following links for further assistance:
Download the Free DIY Urgent Child Contact Toolkit for mothers and Fathers found on this website. This would greatly assist you as an extra tool. The toolkit relates to an Urgent Child Contact Application in the Western Cape High Court which would be of assistance in making an urgent application and completing the form below.
Urgent Holiday Contact Toolkit
This Urgent Holiday Contact Toolkit incorporates the Free DIY Urgent Child Contact Toolkit for mothers and Fathers. However, you are provided with an online form that you complete, and thereafter, an email will be sent to you with partially completed court documents. Try it out. This and other articles and posts found on this website are written by Adv. Muhammad Abduroaf assists people with various family law-related issues they may have. If you find any of our articles, free resources and posts interesting or possibly useful to others, please like and share it on Social Media by clicking on the icons below. For more interesting articles and information on Family Law, view our articles and Q&A page. If you have a family law-related legal issue and you want someone to answer or reply to it, feel free to post it on our Family Law Blog. Therefore, kindly like and share. Should you require any other legal services and advice not related to family law, visit Private Legal.
Are you married? Do you know what is your matrimonial property regime?
To register your Antenuptial Contact, Click here. Are you married in Community of Property? Do you want to change your matrimonial property regime to Out of Community of Property? Did you not know that a marriage Out of Community of Property was possible when getting married? There is legal relief for you and your spouse.
In Community of Property
All civil marriages are automatically In Community of Property. This means that there is one estate shared between wife and husband. Therefore, if anyone of the spouses incurs a debt, that debt belongs to both of them.
Out of Community of Property
The other option is to get married Out of Community of Property. This means that there are two separate estates and each party is responsible for his or her own debt. For some people, this would be a better option, especially if you are a business person.
Accrual system
The usual process to be married Out of Community of Property is to enter into an antenuptial contract before the marriage. The contract will have clauses in it stating:
That there shall be no community of property;
That there shall be no community of profit or loss; and
That the accrual system provided for in Chapter 1 of the Matrimonial Property Act, no 88 of 1984 is expressly excluded from the marriage.
However, if you did not do so, there is a way of changing your matrimonial property regime from In Community of Property to Out of Community of Property. For this, you need the consent of the High Court in your Jurisdiction. Here you will make use of section 21 of the Matrimonial Property Act 88 of 1984.
Getting the High Court’s Consent to change your matrimonial property regime to Out of Community of Property
Once you and your spouse have decided to change your matrimonial property regime to Out of Community of Property, you would need to approach the High Court in your area for consent. If you know the law, legal process, Court rules, and procedure, you and your spouse can do it on your own. If you cannot do it on your own, an attorney would be able to do it for you. This the attorney may attend to with or without the assistance of an Advocate.
Drafting a post-nuptial contract
What they do is draft a post-nuptial contract for you which would outline what matrimonial property regime you want and also how the joint estate should be divided.
Application to the High Court for consent to change your matrimonial property regime to Out of Community of Property
Then they draft a Notice of Motion (notifying the Court what you want) and Founding Affidavit (your affidavit outlining your case etc.). Your case must satisfy the Court that:
There are sound reasons for the proposed change of the matrimonial property regime;
There has been sufficient notice to creditors regarding the proposed change; and
No other person will be prejudiced by the proposed change.
If, however, you cannot make a case for the above, your application may be unsuccessful.
Costs involved in changing your matrimonial property regime
As stated, you have to approach the High Court for consent to change your matrimonial property regime. There, therefore, would be the costs of an attorney who may instruct and advocate, and further costs in drafting and registration of the postnuptial contract. Furthermore, there is advertisement cost involved as you would have to give notice in the Government Gazette and in one or two local newspapers. You would further have to serve your application on the Registrar of Deeds and give notice to your creditors via registered mail. The total costs can range from R 25 000 – 00 should your matter be straight forward, to R 30 000 – 00 should it be more complicated.
Complicated applications to change your matrimonial property regime to Out of Community of Property
Complicated would mean the joint estate has many creditors. Furthermore, there may be many assets in the joint estate that needs to be divided, especially if they are not easily describable. The above-mentioned fee is obviously dependent on your application not being opposed by any interested party. One reason for opposing the application could be that the Joint Estate is deeply indebted to a creditor, and she feels that her claim would be prejudiced by the proposed change. Should your application be opposed for any reason, many more hours will be spent fighting for the success of your application which could costs you a small fortune and you may even be ultimately unsuccessful. Therefore, you would need to advise your legal team of all relevant facts before the application is made.
Time estimates to change your matrimonial property regime to Out of Community of Property
The estimated time in preparing your application, your post-nuptial contract and ultimately obtaining consent from the High Court is about 4 weeks. This is also dependent on whether or not the High Court is sitting within 4 weeks after the drafting of your application. If the High Court is in recess, a few extra weeks may apply. The Court may also want a report from the Registrar of Deeds which could cause delays.
Registering the postnuptial contract
Once your application is successful and the High Court, therefore, gave consent, you will usually have 3 (three) months to register the postnuptial contract. So once consent is granted, you need to see a Notary Public before whom you will sign your post-nuptial contract and then have it registered. This, therefore, needs to be done within the three months of obtaining the consent of the High Court.
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