Divorced? Here’s why you should change your will.

Written by Cherise Hansen on July 27th, 2015. Posted in divorce, marriage, Uncategorized, wills

last will

You fall in love, get married and draw a will leaving all your worldly possessions to your spouse. Then divorce happens… and your will is forgotten. You may be lucky to find new love and you re –marry. You don’t make the time to draw a new will.

Then death happens and much to your new spouse’s dismay, your ex –spouse will now inherit all your worldly possessions.

Once you have a will, it is valid until it is revoked by a further will or your will is destroyed.

Most people forget to revoke their previous will after they get divorced. In terms of Section 2B of the Wills Act, Act 7 of 1953, if a person dies within 3 months after their divorce, and the will was executed before the date of divorce, then the will be carried out as if that person’s spouse had died before date of divorce, unless it appears from the will that the person intended their spouse to inherit in terms of their will regardless of the divorce.

What this means is that if you had a valid will before you get divorced in which your spouse would inherit; you get divorced and pass away within 3 months from the date that the divorce order is granted, then your ex-spouse will not inherit anything from you in terms of the will unless you made it clear that you intended to ex-spouse to inherit regardless of the divorce. If you pass away after this 3 month period and you had not yet changed or revoked your previous will, then your ex-spouse will inherit as per your will. You thus have a period of 3 months from date of divorce to change or revoke your will.

Divorced? Have you changed or revoked your will?

Cohabitation agreements

Written by Cherise Hansen on May 6th, 2014. Posted in ante-nuptial contracts, cohabitation, cohabitation agreements, living together, marriage

Written by Samantha-Jo Bothma

There is a growing trend to cohabitate with one’s partner instead of marrying in today’s society. The mere fact that the two parties live together for a number of years, does not afford the parties legal protection and/or any rights to the other parties’ assets should the relationship end.

The question is then how can parties, who have no intention to marry, protect themselves in the event “the wheels fall off the bus”? The answer lies in what is called a cohabitation agreement. 

A cohabitation agreement is much like an antenuptial contract in that it determines, from the outset, whose assets are whose, and how assets purchased jointly will be divided upon termination of the cohabitation. The agreement is recognised by High Court and can be enforced should either party act in breach thereof.

What is important to note is that a cohabitation agreement can and will never define the parties as spouses, for obvious reasons. The fact thereof is that under no circumstances will either spouse have any claim whatsoever to the other’s pension benefit.

In the absence of the cohabitation agreement neither party will have any financial protection and/or recourse against the other party on dissolution of the relationship. It is therefore imperative that parties conclude a cohabitation agreement to protect themselves in the event they do not intend marrying one another.

Related articles: Living together: What it means to you.


Written by Cherise Hansen on August 12th, 2013. Posted in care, child maintenance, children, cohabitation, contact, divorce, living together, maintenance, marriage, marriages, seperation

Written by Lanka Krugel

google images
google images

When two people decide to divorce each other, decisions have to be made regarding the care of any children who may be affected by the divorce. It has to be decided with which parent the children will live, when and how often the children will see and speak to the parent with whom they do not live, and whether either of the parents will be liable for paying maintenance. This also applies to parents who were living together when a child was born or even when a child was born to parents who were not living together or were married.

After much fiery debate on the subject of a father’s right to access of his child, the Children’s Act, Act 38 of 2005, has provided some certainty regarding parents’ rights of access and custody of children in South Africa. The Children’s Act came into effect on 1 April 2010.

Rights of unmarried fathers

In the past, where parents were not married to each other, an unmarried father did not have an automatic right to contact his child.  Unmarried mothers had an automatic right to contact and the child would normally live with its mother whilst the unmarried father would have to approach the court for an order allowing him to have contact with his child.

[Note: The Children’s Act replaced the common law concept of “custody” with “care” and “access” with “contact”, as defined in section 1 of the Children’s Act.]

The definition of “parent” in the Children’s Act now includes unmarried fathers and adoptive parents, but excludes the following three classes of biological parents:

  • a  man whose paternity arises from rape of or incest with the mother;
  • a  person who is biologically related to the child by reason only of being a  gamete donor   for purposes of artificial fertilisation;
  • a  person whose parental rights and responsibilities have been terminated.

Parental responsibilities and rights 

Section 1 of the Children’s Act defines a concept of “parental responsibilities and rights” to mean the responsibility and right:

(a)  to care for the child;

(b)  to maintain contact with the child;

(c)  to act as the guardian of the child; and

(d)  to contribute to the maintenance of the child.

A biological father of a child has full parental responsibilities and rights in respect of a child if:

  • He is married to the child’s mother; or
  • He was married to the child’s mother at the time of the child’s conception or birth, or any time in between conception and birth.

Section 21 of the Children’s Act provides that the biological father of a child who does not have parental responsibilities and rights in respect of a child as a result of any of the aforementioned situations, may acquire such if:

  • at the time of the child’s birth he is living with the mother in a permanent life-partnership; or
  • regardless of whether he has or is living with the mother, he consents to be identified as the father or successfully applies for a court order declaring him as such. In this instance, he must have been contributing to the child’s upbringing and maintenance “for a reasonable period”.

Best Interests of child standard

The concept of “best interests” means that the court should have regard to the best interests of the child when making a decision regarding the care and contact of that child by his parents. Our Bill of Rights provides for the “best interests” concept, and the Children’s Act has now also reiterated that approach.

Section 7 of the Children’s Act provides a list of the factors to be taken into account “where relevant” when applying the best interests standard. Some of the factors that should be considered include:

  • the nature of the personal relationship between the child and his respective parents;
  • the attitude of the parents towards the child, as well as their attitude towards the exercise of their parental rights and responsibilities regarding the child;
  • the capacity of the parents to care for the child’s needs;
  •  the child’s gender,  age and level of maturity;
  • the need for the child to be brought up within a stable family environment, or, where that is not possible, in an environment resembling as closely as possible a caring family environment.

Child’s Opinion

If the court feels that the child is old enough and mature enough, then the court will also listen to the child’s opinion and take into account where the child wishes to stay.

Two other substantial changes brought about by the Children’s Act

Two other substantial changes brought about by the Children’s Act which also have a bearing on the topic on hand are:

  • Illegitimate children are no longer differentiated from legitimate children; and
  • The age of majority was changed to 18 years and is no longer 21 years.

In conclusion, the Children’s Act has assisted in providing unmarried fathers the right to have contact with their children, where in the past such fathers could only obtain such a right by virtue of a court order. While the Children’s Act widens the definition of who has an automatic right to contact with regards to a child, it also places strict limitations on who may not automatically have a right of contact to a child. The Children’s Act stipulates that the courts should always keep the best interests of the child in mind when making decisions regarding the care and contact of that child, and that the court must take certain factors into consideration when making such decisions.


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