Divorce: Custody of the Children

Before the court will issue a divorce, it has to be decided who will look after the children. The parents can make an agreement or the court can decide. If you are in the middle of a divorce from your spouse, the most important consideration in deciding which parent should have custody is the best interests of the children.

The Family Advocate at the court can help investigate which parent is in the best position to look after the children and will represent the children in the court if necessary. If the divorce is taking a long time, for example if the parties don’t agree, then an interim custody order can be issued setting out who will look after the children while the divorce is being finalised.

[Source] South African Legal Advice

Divorce: Maintenance (Spouse/Child)

When a couple gets divorced, one party is often in a better financial position than the other. The person who has custody of the children will also have expenses that the other parent does not have. For this reason the court will issue a maintenance order requiring maintenance to be paid for the children and, depending on the circumstances, to the other party.

Maintenance for the children

Maintenance for the children is paid to the parent who has custody (but it is important to remember that this is the child’s right and not the parent’s). All parents have a duty to support their children, including children who are illegitimate. If there are problems with maintenance after the divorce has gone through, these can be taken to the Maintenance officer at the Magistrates Court.

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National Credit Act: Commercial loans exempt?

The implementation of the National Credit Act has drawn a lot of attention from credit providers and the Act is often blamed for the weak market conditions in retail, motor vehicle sales and the residential property market. The Acts application is far reaching. Implementing the new National Credit Act has also been a cumbersome and expensive exercise for many.

Prior to the National Credit Act

Before the National Credit Act the credit industry was regulated by a variety of laws, which included theCredit Agreements Act, Usury Act and the so called Exemption Notice to the Usury Act. Under the old dispensation micro loans were exempt from the Usury Act, which meant that for loans of less than R10,000.00 and a repayment period of no more than 12 months there was no limit as to what the consumer could be charged as far as interest rates were concerned. Microlenders could charge any interest rates, and loans charging rates of 30% per month common. If a lender did not fall within the framework of the Exemption Notice, the restrictions of the Usury Act applied.

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Divorce: Dividing up your property

How the family property will be divided up depends on what property regime the couple adopted when they got married. This will usually be covered in the ante-nuptial agreement if there is one or, if there is no pre-marital contract, then it is determined by law. 

The default legal position is that civil marriages are in community of property. This means that everything that you own is shared, including property and debts. Accrual means that everything that you earn or buy after you have married also becomes part of the joint estate. If you get divorced, the shared property is divided equally between you. Any debts are also shared.

[Source] South African Legal Advice

National Credit Act and Home Loan Finance?

The new National Credit Act of South Africa came into affect in 2007, and has compelled the banks to ensure that their mortgage clients do not over extend their credit limit. 

Previously, the bond repayments were not to exceed 30% of their proven dependable income. The new act will now make the banks legally responsible for checking the applicant’s full credit situation. On bond application, clients will be asked to declare their income as well as their expenses.

With the new act, the banks will have to be fastidious about ensuring that the client has declared all debt, for example car repayments, credit cards, retail accounts and any other debt the client may have; if they have another home loan; or a rental agreement (where applicable) it will also be regarded as a mandatory requirement. Investors who invest in off-plan purchases may find it more difficult to obtain finance if they have mortgages with other financial institutions, thereby making multi-property ownership finance more difficult to secure.

[Source] South African Legal Advice