Forfeiture of Benefits

Posted by on November 11, 2014 in Blog, Divorce, Forfeiture of Benefits | Comments Off on Forfeiture of Benefits

In terms of Section 9 of the Divorce Act, the court has the discretion when granting a divorce on the grounds of the irretrievable breakdown of the marriage or civil union, to order that the patrimonial (financial) benefits of the marriage be forfeited by one party in favour of the other. The court will only grant such an order if it is satisfied that the one party will be unduly benefited if the forfeiture is not ordered. In exercising the discretion to order forfeiture, the court must ask itself whether one party would be unduly benefited were such an order not made. In answering this question, the court should take into account factors such as the following: (1) the duration of the marriage or civil union; (2) the circumstances that gave rise to the break-down of the marriage or civil union; and (3) any substantial misconduct on the part of either of the parties and the fact that an undue benefit may accrue to the one party in relation to the other if an order of forfeiture is not granted. The discretion is restricted to consideration of the above grounds alone. No other factors may be taken into account. As far as specific factors are concerned, infidelity and abuse can be seen as substantial misconduct and can be taken into account when arguing a forfeiture of benefits claim. Having said that, care must be taken not to elevate misconduct to a consideration higher than the basic requirement of undue benefit – these two factors must go hand in hand. If you feel that your spouse has unduly benefitted during your marriage and that their substantial misconduct has contributed or even lead to the breakdown of the marriage, it may be in your best interests to seek professional legal advice to establish whether you have a claim or...

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Infidelity in Marriage

Posted by on November 11, 2014 in Blog, Divorce, Infidelity in Marriage | Comments Off on Infidelity in Marriage

In this day and age it is extremely common to hear stories of cheating husbands and wives either through social networking sites such as Facebook or through work relationships. If you are a victim of a cheating spouse who you have discovered has been unfaithful during your marriage relationship, you need to consider the following before making a decision as to the way forward: (1) Counselling – you need to consider whether counselling may assist you and your spouse in overcoming the deception and forgiving the lies so that you can move on and continue with your marriage relationship. If this is your choice, you would need to ensure that you are committed to forgiving your spouse and making the marriage work. (2) Mediation – if you have decided that you would like to proceed with a divorce however you want it to be as amicable and pain-free as possible, you can elect to attend mediation sessions with your partner in an attempt to reach an agreement as to the way forward. If an agreement cannot be reached, each party would have to then appoint their own attorney or arbitration can be considered where a third party assists the parties (much like mediation) however this arbitrator will make a final decision that is binding on the parties. (3) Divorce – if you feel that you are unable to forgive your spouse for their unfaithful conduct, you would need to then consider obtaining a divorce. If you have sufficient grounds, you can also claim for a forfeiture of patrimonial benefits if you feel that your cheating spouse would be unduly benefited where he/she to receive his/her portion of the marriage proceeds. Lying and cheating in a marriage is the ultimate deception and usually leads to the irretrievable breakdown of the marriage. The pain and anger suffered by the party who has been wronged can be remedied to a certain extent through the obtaining of strong, swift and just legal representation who can swing the odds back in your favour and ensure that your spouse regrets their...

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Employer protection retainer – All you need to know

Posted by on November 6, 2014 in Blog, Featured Articles | Comments Off on Employer protection retainer – All you need to know

What is it? The employer protection retainer is an option provided by SDF Attorneys available to employers who require specialist labour law advice and guidance when dealing with employees to ensure that their interests and those of the company are always protected. When can it be used? An employer can ask for advice and guidance regarding any aspect of employment and labour law, including but not limited to the following: Letter of Appointment; Employment Contract; Retrenchments procedures and calculation and negotiation of severance packages; Substantively and procedurally fair suspensions; Disciplinary hearings; Charge sheets; Substantively and procedurally fair dismissals; CCMA referrals; Discrimination in the workplace; Gross insubordination. What is excluded? Any drafting that is required to be done in line with any of the above, any appearances that are required (at the CCMA or otherwise) as well as hard cost disbursements (including counsel and correspondent fees) will be excluded from the monthly retainer amount and will be charged for separately and invoiced accordingly. What is the cost of the retainer? The client (employer) is charged a set amount per employee (R150.00) per month to make up the total monthly retainer amount. What is the cost of all additional work? The client (employer) will be charged at our standard professional hourly rate for any drafting or representation. What is the advantage of this retainer? The employer will have the benefit of expert advice and guidance at any time when making important employment and labour law decisions in the workplace and this will ensure that labour disputes and complaints by employees are significantly reduced as all important policies and procedures will have been followed by the employer. This will also ensure that the employer’s case is as strong as possible, should the employee still decide to refer the matter to court or to the CCMA for adjudication. The employer always has the benefit of discussing any legal decisions that he or she is wishing to make with a legal professional, which will ensure that the employer is always protected and will not make any decisions that may jeopardise the company or be the cause of a legal claim against the company by an employee or former employee. With the employer protection retainer option, the employer can focus on the running of the business and does not have to concern himself with researching labour law and the consequences of suspending or dismissing an employee. The employer can simply refer the dispute, concern or question to SDF Attorneys where we, as labour specialists, can advise the employer accordingly without the employer having to lose valuable time that could be spent running his or her business. The employer protection retainer is designed to protect and support the employer in a society where, for the most part, our labour and employment legislation only seeks to protect and support employees. Although this is necessary, some attention and respect must also be given to the employer and it is for this reason that the employer protection retainer was created by SDF Attorneys. We will worry about the legal aspects of all labour and employment decisions made by the employer, so that he or she does not have to. Please contact us for more information about this option if you are interested in making your job as an employer more...

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Your right as a father of a child born out of wedlock

Posted by on November 6, 2014 in Featured Articles | Comments Off on Your right as a father of a child born out of wedlock

The law in South Africa used to heavily favour mothers of minor children born out of wedlock in regard to care and contact (now known as primary residency and access) of the child or children. The father was always put at a disadvantage by the law and ultimately by the courts when the primary residency parent of a child was determined. It was almost a given that the father would be granted access to the child every second weekend from Friday to Sunday, regardless of the specific facts of the case. Although the current situation still favours mothers of a minor child born out of wedlock, the Children’s Act, (referred to as “The Act”), has now been amended and incorporates an updated version of what was previously known as The Natural Fathers of Children Born out of Wedlock Act. More specifically, Chapter 3 of the Act, titled “Parental Responsibilities and Rights” is now the chapter in which the rights of each parent are listed and discussed in detail. According to this chapter, the mother and father of a minor child share equal and joint parental rights and responsibilities in respect of such a child, irrespective of whether the parents of the child were married or not at the time of the child’s birth. The Act therefore provides a father of a child born out of wedlock with the same rights in respect of the child as a father of a child born of a marriage. The Act states the following, when referring to the rights and responsibilities of unmarried fathers – the biological father of a child born out of wedlock acquires full parental responsibilities and rights in respect of the child if, at the time of the child’s birth, he is living with the mother in a permanent life partnership or if he (regardless of whether he has lived or is living with the mother) consents to being identified or successfully applies to be identified as the child’s father or contributes or has attempted in good faith to contribute to the child’s upbringing or towards expenses in connection with the maintenance of the child for a reasonable period. This means that, should a father meet the above requirements, both the mother and father of the child are equally and jointly responsible for the protection, maintenance and upbringing of the child but in turn should also spend equal or similar amount of quality time with the child. Therefore, the right to see and spend time with the child is also coupled with the right (and responsibility) to maintain and protect the child. This does not however mean that access and maintenance in our law are now linked. Many fathers are not aware that they are still allowed and entitled to enjoy access to their child, even in circumstances where they are not in the financial position to provide maintenance for the child. These two concepts are kept completely separate in our law and therefore a mother can never argue that a father should not be allowed access to his child because he does not pay maintenance. In South Africa, the High Court is considered the uppermost legal guardian of all minor children in South Africa and as such the best interests of the minor child will always be the...

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Drunk driving – What to expect if you are caught

Posted by on November 6, 2014 in Drunk driving, Featured Articles | Comments Off on Drunk driving – What to expect if you are caught

Nowadays it is inevitable that every South African will be stopped in a roadblock at some point in the future. While the ideal situation would obviously be to be completely sober when this happens to you, this is unfortunately not always the case and most South Africans have no idea what to expect if they are pulled over whilst intoxicated. It is important to know your rights in such a situation but also to know the procedure and what to expect from the moment that you are pulled over to the moment that you are convicted or the charge is withdrawn. Once you are pulled over by a SAPS or Metro Officer, the process will be more or less as follows: 1.    The Officer will ask you if you have been drinking. Our advice would be to always be honest here, as we have had many clients who say that they have not been drinking and are then breathalysed anyway. It will then only make your situation worse if the Officers realise that you lied to them. 2.    If the Officer chooses to breathalyse you, you will be taken from your vehicle to a location nearby where all of the individuals being pulled over and tested will all be waiting to be breathalysed. If there are other people travelling with you in your vehicle, they will be asked to stay in the vehicle. 3.    Another Officer will then attend to the breathalyser test. You will be asked to blow as hard as you can into the plastic mouth piece of the breathalyser. The machine will then show a reading and the Officer will record the reading. 4.    If your result is above the legal limit of 0.05g/dl (which is normally the equivalent of two beers consumed in relatively quick succession), you will be informed of this and you will be placed in the transportation van to be taken for blood withdrawals. Although the breathalyser test is no longer accepted in court, it is still used as a quick and easy way of determining whether a driver has been drinking alcohol. A blood test must be performed however to confirm this suspicion as the breathalyser results alone will not be sufficient for a conviction. 5.    Your vehicle will either be driven to the relevant police station by one of the other passengers or a fellow officer or will be left at the scene to be collected at a later stage. Ensure that your vehicle will be looked after in your absence, as you would not want to have a stolen or misplaced vehicle to worry about too. 6. You will then be taken (along with the other drunk drivers) to a clinic, hospital or a mobile blood drawing unit, where your blood will be taken. A district surgeon, registered nurse of prison medical officer will take your blood and must use a fresh needle and sterilised supplies. A person arrested on suspicion of drunk driving (with supporting breathalyser results) may not unreasonably refuse to have blood taken. Naturally, if there is a dirty needle being used or the person drawing the blood is not qualified, you may refuse until the situation has been remedied, however you must try to gather evidence to support your refusal in court. You can however...

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What to look for when selecting a Divorce Attorney

Posted by on November 6, 2014 in Featured Articles | Comments Off on What to look for when selecting a Divorce Attorney

Making the decision to get a divorce is probably one of the hardest decisions that a person can make. The second hardest decision is probably selecting the divorce attorney that you will use to oversee and facilitate the divorce process on your behalf. As a divorce is already an extremely emotional and sensitive time, a divorce attorney who is also sensitive and reasonable should be selected, however you should ensure that the divorce attorney can be aggressive and strong during negotiations (if this approach is required). A divorce lawyer who is unreasonable and aggressive from the beginning will only inflame the situation and aggravate matters in circumstances where settlement may have been a possibility had the attorney been slightly more collegial with his or her opponent. As the divorce lawyer that you select may be a part of your life for anything from a few months to a few years (in extreme cases), you must ensure that you are comfortable speaking to them and confiding in them and you must also be confident that you are on the same page in terms of strategy and desired outcome regarding the divorce. A divorce attorney who has his or her own agenda such as making a “quick buck” or boosting her or her reputation will never be able to have your best interests at heart. There are a few questions that you should ask yourself before selecting a divorce attorney: Would I prefer a divorce attorney who is the same gender as me or as my spouse or does this not matter? Would I require a divorce attorney who is available constantly via email, mobile or text message or are face-to-face meetings more important to me? Do I want the security of selecting a larger firm (although turnaround times may be slightly longer) or do I want quick and personalised service from perhaps a smaller, less established firm? How many years’ experience should my divorce attorney have for me to feel comfortable using them or does this not matter? How expensive is this divorce attorney and what am I willing to pay to secure the result that I want? Selecting a divorce attorney can be a daunting task, however SDF Attorneys strive to make you feel comfortable with us and confident in your decision to use our divorce attorney as your legal professional. We understand and appreciate what a difficult decision it is and we strive to assure you that you have made the correct choice by choosing us. If you would like to discuss your divorce, whether ongoing or only starting, with our divorce attorney, please visit our Contact Us page and give us a call. We always look forward to hearing from...

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Expungement – Do I Qualify?

Posted by on November 6, 2014 in Featured Articles | Comments Off on Expungement – Do I Qualify?

The expungement process is a criminal record removal process which applies to convictions that meet a certain criteria. In our law, there is unfortunately no “automatic expungement”, which means that a conviction from over 50 years ago will still need to be removed through the criminal record removal process. The requirements that must be met before a conviction will qualify for a guaranteed expungement are listed in Section 271B (1) of the Criminal Procedure Act 51 of 1977 as amended. A person with a criminal record will qualify for an expungement if: 1.    A period of 10 (ten) years has lapsed since the date of conviction (not the date of the commission of the offence as some people think); 2.    The individual was not sentenced to a period of direct imprisonment or a fine of over R20 000 for the offence; and 3.    The individual has not been convicted of any other offence during that 10 (ten) year period where they were sentenced to direct imprisonment without the option of a fine for that second offence. An individual will also fail to qualify if he or she was convicted of a sexual offence against a child or a person who is mentally disabled or of an offence where he or she was found unsuitable to work with children. Having your name included on the National Register for Sex Offenders or the National Child Protection Register will also mean that you will not qualify unless your name has since been removed from same. The expungement process takes between 4 and 6 months from date of submission of the application, depending on the number of applications being processed by the Department of Justice at that particular time and also depending on the time of year (the applications tend to taker longer over the Festive and Easter periods). We do however do whatever we can to expedite the process and to ensure the smooth processing of your application as we are able to contact the specific Legal Administrations Officer dealing with your expungement on your behalf. Once the expungement has been processed and approved by the Department of Justice, it must then be sent to the Criminal Record Centre in Pretoria, which is where the conviction/s qualifying for expungement are physically removed from your criminal record. The CRC will then send a letter of confirmation to us, confirming that the specific conviction/s that qualified for expungement has/have been successfully removed. Once this is done, the individual may apply for a new Police Clearance Certificate at their nearest police station and the convictions that were expunged will no longer appear at all. Should this sound like something that you or someone you know would be interested in, please Contact Us for further information and...

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Unopposed divorce – What is the process?

Posted by on November 6, 2014 in Featured Articles | Comments Off on Unopposed divorce – What is the process?

Many people are unaware or uncertain of the difference between an opposed and an unopposed divorce and are not sure which applies to them. This article aims to educate the layman a bit more regarding the difference between the two and the standard process to be followed in the case of an unopposed divorce (bearing in mind that each divorce is slightly different and may vary somewhat from what is set out below). An unopposed divorce is a divorce where both parties have agreed to the divorce itself as well as to all aspects of the divorce (division of the estate, primary residence of the children, maintenance to be paid etc.). This is naturally then the best way of getting divorced as it is quicker, easier and less emotionally daunting than an opposed divorce (where the parties are not in agreement). With an unopposed divorce, the parties will sign a settlement agreement which will basically set out all of the aspects of the divorce and what has been agreed between the parties in relation thereto. If there are assets to be divided, the assets must be listed (both immovable and movable) and the agreement between the parties must be clearly stipulated for each such asset. If there are minor children involved, the settlement agreement must also include a comprehensive contact schedule for the parent who will not be exercising primary residence of the children and must ideally provide for standard contact as well as holidays, birthdays, Mother’s Day, Father’s Day, special occasions and travel. The settlement agreement must also stipulate the agreed maintenance amount to be paid by the contact parent as well as when this amount will be paid and until the children reach what age. The more comprehensive the agreement, the less room there will be for confusion or misinterpretation in the future. The settlement agreement will then be attached to the summons, which will be issued (given a case number at the relevant court) and served on the Defendant by sheriff. The settlement agreement will also have to be sent to the relevant Office of the Family Advocate to be endorsed or approved by them, if there are minor children involved. The court will only make the settlement agreement an order of court where it has been successfully endorsed by the Office of the Family Advocate, so this is a very important step. Once the time allowed for the Defendant to enter an appearance to defend the matter has expired (a period of 10 (ten) court days which is approximately 2 (two) weeks), the matter can then be set down on the unopposed roll for hearing. Unopposed matters are always heard on a specific day of the week and so unfortunately the Plaintiff will have to make themselves available to appear in court on that specific day. In the South Gauteng High Court, for example, unopposed matters are always heard on Fridays. Once the matter has been successfully set down, the court file must be prepared for the hearing date. The file must be indexed and paginated and a copy of the court file bundle must be given to the attorney or advocate who will be representing the parties on the day. Your attorney will however be responsible for ensuring that all of these preparatory steps...

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How much does a divorce cost?

Posted by on November 6, 2014 in Featured Articles | Comments Off on How much does a divorce cost?

Many clients have approached SDF Attorneys for assistance in a divorce matter or simply for some advice regarding a potential divorce in the future (should mediation or couple’s therapy fail down the line) and have asked this very important however very difficult question to answer. Asking how much a divorce will cost is unfortunately like asking how long a piece of string is – it all depends. Should the divorce be an unopposed divorce, the cost will be easier to determine as the process is predictable and there is a set amount of work that will be required by our divorce specialist. At SDF Attorneys, we actually charge an all-inclusive once off fee for an unopposed divorce, which makes life much easier for the client as they are able to budget accordingly and there are no unexpected surprises during the process. If the divorce is an opposed (contested) divorce however, it is almost impossible to give an estimate in terms of total cost. This is because each divorce is so unique – some will settle after one or two weeks of negotiating where others will proceed to a full-blown trial after two years of trying to negotiate a settlement (although this is extremely rare where we are involved as we encourage settlement between the parties). The factors that must be taken into account when considering the cost of an opposed divorce are the following (among others): The cost of consultations (both in person and telephonic) – your divorce attorney will charge per hour or a pro rata portion thereof for all time spent consulting and advising on your matter. The cost of pleadings – all official court documents (pleadings and notices) in a divorce must be drafted by the divorce lawyer and this will be also be charged for. The cost of correspondence – all emails and letters sent and received by the attorney (both from and to you as well as from and to the opponent) are charged for based on the length and complexity of the correspondence and how long it took your attorney to draft or read the document in question. Legal couriers/messengers – this is a cost that cannot be avoided as the pleadings and notices in a divorce matter must be issued, served and filed to be valid. The cost of the couriers/messenger is however still more affordable than if your attorney attended to these duties him/herself. Sheriff’s fees – it is a rule that a divorce summons must be served by sheriff and cannot be served by couriers or your attorney. The sheriff charges a fee for this service and the fee will vary based on the status of the service (urgent or standard), whether they have to try more than once to serve the summons, how far they have to travel to serve the summons etc. Other hard cost disbursements – this includes but is not limited to printing, telephone calls (mobile and local), text messages, envelopes etc. Counsel or advocate’s fees – most divorce specialists (attorneys) will make use of an advocate when the time comes to proceed to trial. The advocate will charge a rate per hour for all court appearances and for any preparatory consultations or briefings that are required. Correspondent’s fees – should one or both of the parties...

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Selecting an attorney where a child is or children are involved

Posted by on November 6, 2014 in Featured Articles | Comments Off on Selecting an attorney where a child is or children are involved

Selecting an attorney where the rights of a child or children are of a major concern is a very difficult task as the usual aggressive and insensitive attorney may not be ideal in that the child or children involved may end up being unnecessarily traumatised. A child or children attorney must be able to remain calm and reasonable while still trying to protect the child or children as much as possible. This is especially the case where the parents of the child or children are involved in a tumultuous divorce and may be using the child or children as a pawn against the other party (albeit unintentionally). In these circumstances, it is the duty and the responsibility of the divorce attorney to protect the interests of the child or children and ensure that the best outcome possible is reached in the shortest time possible and with the smallest amount of damage having been done to the child or children. As Sheena De Figueiredo of SDF Attorneys is a mother herself, she always strives to ensure that the child or children in a divorce or custody battle are protected as much as possible and will never aggravate such a situation simply to increase fees or drag the matter out – she always focuses on the positives in a matter and aims to bring the parties to an amicable resolution. If you feel that this is the type of legal assistance that you require, contact us today for further information. If it appears that you do need assistance, feel free to contact our legal specialist who will be able to advise as to the best way forward in your...

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