Relationships and the law
You and your spouse may require the services of an attorney during the course of your marriage, either jointly or separately.
There may be times in a romantic relationship where you are faced with a situation that requires legal support. The services of an attorney will ensure that you receive the correct and suitable legal advice applicable to your specific situation and that your rights are protected.
In South Africa, there is a distinction between attorneys and advocates. You can hire an attorney, who will, if required, instruct an advocate on your behalf. Attorneys are general legal practitioners that provide legal advice and services to their clients, and advocates appear in the high court and settle pleadings at a higher level for complicated cases.
There are two divisions of law in our country – criminal and civil. Criminal law involves the arrest and prosecution of someone who is suspected of being involved in criminal activity. Civil issues are generally disputes between parties. In South Africa, family law refers to legalities pertaining to family relationships and forms part of civil litigation.
When to consider the services of an attorney
- Marriage
If you are getting married, you will need to decide on the type of marriage you will enter into. This may be civil, customary or religious and each type has different legal consequences. If you choose a marriage out of community of property without accrual or out of community of property with accrual, you will need to draw up an ante-nuptial contract. After consultation, an attorney will draw up the contract for both parties to sign, tailored to your specific needs. - Drawing up a will
Prevent unnecessary family disputes after your passing by drawing up a last will and testament that clearly states what your wishes are and any bequeaths you have. An attorney should assist you with drafting your will and can also be appointed as the executor of a will. Spouses married in community of property can draw up a joint will. - Buying a house together
If you are buying a house, your Offer to Purchase (once accepted by the seller and when the bond is approved) will be passed on to transferring attorneys which are selected by the seller. Three sets of attorneys work on the transfer process – the transferring attorneys, the cancelling attorneys and the bank’s attorneys for the new bond (if applicable). As the purchaser, you will need to give the transferring attorney a power-of-attorney with entitles them to sign on your behalf at the deeds office. - Divorce and child custody
If you and your spouse decide to end your marriage and the divorce is uncontested, meaning both parties agree to the terms and a fair distribution, you can both use the same attorney to finalise proceedings. The two parties will decide on how to divide the assets and who will be the ‘parent of primary residence’ if there are any children involved. The attorney will draft a settlement agreement which is signed and made an order of the court. If, however the divorce is contested, both parties must have separate attorneys. The processes can be very lengthy and expensive. - Maintenance for a child
If you are the primary caregiver of your child, you have a right to approach a maintenance court for maintenance from the child’s other parent. You can do so directly, or hire the services of an attorney to assist you with the application. - Domestic violence
South Africa has a very high level of domestic abuse, especially abuse perpetrated against women and children. The Domestic Violence Act 116 of 1998 defines abuse as any form of abuse including physical, sexual, emotional, psychological, economic harassment, damage to property, stalking or controlling behaviour that causes harm to a person’s safety and wellbeing. While you can apply (free of charge) for a protection order at your local magistrate’s court, you can also approach an attorney for help. A protection order is a court order issued document to demand that the abuser stop the abuse and that if it does not stop, you can call the police to arrest him or her. You can also lay criminal charges against the abuser. - Death of a spouse
Upon the death of a spouse, the estate of the deceased must be reported to the Master of High Court within 14 days. If you are in possession of the deceased person’s assets or will, you can report the death. If you are nominated as the executor of your deceased spouse’s will, you can appoint a third party, such as an attorney, to assist you with your duties. An attorney can assist with the complex legal processes of winding up the person’s estate and provide expert legal knowledge to ensure that the process is a smooth one. If your spouse dies without a will, it is preferable to appoint an attorney to assist you through the intestate succession process where a spouse and blood family members automatically inherit the person’s property and possessions.
Legal support
Remember that you have access to telephonic legal advice through your employee wellbeing programme. Contact your employee wellbeing programme for any additional legal support and information.
Resources
- Fact-checked by: Arinda Truter, SchoemanLaw Inc.
- www.Justice.gov.za
- www.WesternCape.gov.za
- www.LegaZoom.com