We maintain a living knowledgebase that captures the questions we are asked most often. The guidance below has been adapted to align with Nell & Du Toit Attorneys’ practice areas and current South African law.
Divorce & Family Law
Is a customary marriage legal in South Africa?
A customary marriage can be registered in accordance with the Recognition of Customary Marriages Act. Either spouse may apply to the registering officer for the registration of the customary marriage and must furnish the registering officer with the prescribed information and any additional information required to satisfy the officer as to the existence of the marriage. A registering officer must, if satisfied that the spouses concluded a valid customary marriage, register the marriage by recording the identity of the spouses, the date of the marriage, any lobolo agreed to and any other particulars prescribed. A certificate of registration bearing the prescribed particulars will then be issued. The registration of a customary marriage is not a legal requirement for the validity of the marriage, but it does serve as proof of the existence of the marriage.
If the couple decides to marry out of community of property, an antenuptial contract should be signed before any ceremony. However, it is possible to execute a postnuptial contract for the customary marriage, which will be registered in the deeds office.
Both spouses must bring the application and must consent to have their marriage contract amended. One spouse cannot bring an application without the other’s consent and participation. The postnuptial contract must be signed by both parties.
Changing the matrimonial property regime via a postnuptial contract requires an application to the High Court and is more costly than an antenuptial contract, costing between R15 000 and R30 000. Therefore it is wise to give this careful thought prior to the marriage.
How does the divorce process work?
There are two options available. The first option is an unopposed divorce. This is the quickest and most cost-effective option. We can give you a quote for the total cost and an indication of how long it will take to finalise the divorce.
An unopposed divorce involves drafting a consent paper (i.e. a settlement agreement) that you and your spouse sign. The consent paper is taken to court, along with a summons. The sheriff serves the documents on the defendant. (The person who initiates the divorce action is called the plaintiff; the other spouse is the defendant. Even in an unopposed divorce one of you must bring the action against the other.) Once the documents have been served, we will get a date for the matter. The entire process takes between six and 12 weeks and costs between R7 500 and R15 000 (excluding VAT and disbursements). For more about our online DIY divorce options, contact us.
If your partner does not agree to the divorce, the divorce is considered opposed. In this case, we will charge a flat inclusive value-based fee. This varies from case to case and factors include urgency and complexity. Opposed divorces take between one and four years to finalise.
We recommend trying to settle a divorce prior to proceeding with litigation. Mediation can help. The courts also require this.
I had a customary marriage. Can I still get divorced through the courts?
The Recognition of Customary Marriages Act states that customary marriages may be dissolved by a competent court granting a divorce decree. This means that a customary marriage is dissolved in the same way as a civil marriage and the provisions of the Divorce Act apply.
What is annulment?
An annulment voids a marriage and erases all legal traces of its existence. The court orders that no marriage ever existed. This can happen where a marriage is declared to be void or voidable.
A court will set aside a marriage as void in any of the following circumstances:
- If the ceremony was conducted by a person who is not recognised under South African law as being able to preside over a wedding
- If the bride is under the age of 15, or the groom is under the age of 18 and did not obtain prior consent from the Minister of Home Affairs
- If the bride and groom are too closely related
- If one party is already married
- If one party was not of sound mind when the marriage took place
A court will set aside a marriage as voidable* in any of the following circumstances:
- The wife was pregnant with the child of another man at the time of marriage
- Impotence or sterility
- Duress or intimidation (one party forces the other into marriage)
- Fraud or misrepresentation (where one party claims to be something or someone they are not)
*Voidable means capable of being revoked or annulled.
What is divorce by substituted service?
Divorce by substituted service can be used when the defendant’s exact whereabouts are unknown. There are many requirements that need to be met for the court to grant a divorce by substituted service.
We have to show, in an affidavit, that every possible attempt has been made to locate the defendant, indicating the steps taken to ascertain their whereabouts. We must also demonstrate that the alternate method of serving the summons (the substituted service) is likely to reach the defendant. We have to prove:
- We found the defendant’s last known address, including how, when and from whom we obtained it
- We have asked neighbours, relatives, friends, former employer/s and any other person we think might know where the defendant is about their whereabouts
- We searched for the defendant online, using search engines such as Google and social networking sites such as Facebook and Twitter
- We appointed a tracing agent
A written summary of these efforts must be included in our affidavit to the court, listing the names, dates, and results of our enquiries. Once we have shown the court that we are unable to serve the summons on the defendant in person, the court may order any manner of service it deems appropriate, such as publication in a newspaper, service on family members or friends, by fax or email, or even through social media.
The application for substituted service is brought separately from the divorce action. Once the summons has been served by substituted service, we still have to go through the divorce process, either on an unopposed or opposed basis.
Hopefully, the divorce can proceed unopposed. The process ordinarily takes between eight and 12 weeks and costs between R15,000 and R20,000 excluding VAT (and excluding the costs of the substituted service application). This only applies if we manage to locate the spouse or if the spouse approaches us after having received the summons by substituted service.
The matter will be unopposed if the summons is served via substituted service and we receive no notice of intention to defend from the defendant.
However, if the spouse contacts us and there is any aspect of the divorce (i.e. proprietary aspects) which they do not agree to, we will proceed on an opposed basis.
What is edictal citation?
An edictal citation is ordered when a defendant is or is believed to be outside the Republic and their exact whereabouts are unknown. No document instituting proceedings can be served outside the Republic of South Africa unless permission is granted by a court.
To serve a summons in another country, we must convince a court by way of an edictal citation application that we have exhausted all other means of serving the summons on the defendant.
In the application you set forth the nature of your claim, grounds on which your claim is based and grounds upon which the court has the necessary jurisdiction to hear the application. The manner of service you request also forms part of your application.
My partner and I are not married but we live together. What are our rights as cohabiting partners?
In South Africa, cohabitation is not a recognised legal relationship, but a couple can sign a cohabitation agreement, which has legal consequences. However, the agreement is governed by the law of contracts and, accordingly, if the terms of the contract are against public policy or contra bonos mores (against good morals), the party will not be bound by them.
Once a universal partnership has been entered into, the couple has to apply to court to dissolve the contract upon termination of the relationship.
What is guardianship? Is it the same as custody?
Custody is not the same as guardianship. When a couple with children divorces, South African courts normally grant guardianship to both parents as part of the divorce settlement. Guardianship is an adult’s right and responsibility to:
- Manage a child’s interests
- Manage any assets or financial aspects of the child’s life
- Assist the child in legal or contractual situations
- Give consent to the child’s medical treatment, marriage or adoption
- Give consent for the child to travel out of South Africa
In certain very specific circumstances, the court may grant sole guardianship to one parent or to someone who is not the biological parent.
To provide someone with guardianship rights, all legal guardians of the child need to consent. In most cases this includes both biological parents, unless the guardianship rights of one parent have been removed, or one parent has passed away. An application for guardianship is a relatively easy process if all the parties involved consent to the application. Affidavits and a settlement agreement are drafted by us for all parties to sign. The court papers must demonstrate that the guardianship application is in the child’s best interests.
However, if one or more of the legal guardians do not consent to the application, the guardianship application will be launched on an opposed basis. This can be costly and time-consuming, as the matter is then investigated by the Family Advocate and in some cases private social workers are appointed. The application will be successful only on the recommendation of the Family Advocate and/or private social worker.
A guardianship application should be made in the High Court with legal representation. If you cannot afford an attorney, you can approach the Children’s Court on your own, where a presiding officer can be appointed to investigate the matter and make an order regarding child care and contact.
Can I change my minor child’s surname?
Yes, with either both parents’ consent or a court order.. Changing a minor’s surname is possible without the other parent’s consent if you have sole guardianship of the child.
Once you have the other parent’s consent or you have obtained a court order giving you sole guardianship, you may approach the Department of Home Affairs with the relevant documents and fill in BI-1682 form.
When is a paternity test required and can a man refuse?
When paternity is denied by an alleged father, it is usually to avoid the responsibility of paying maintenance for the child. The mother may approach the Children’s Court for a paternity test.
If a court requests a paternity test, both parents have to consent and both have the right to refuse. However, if a man denies paternity and refuses to undergo a confirmatory paternity test, it raises questions about his credibility. If there is other evidence that points to him being the father, the court will take this into account and make a presumption of fatherhood.
The Supreme Court of Appeal has held that it is within the power of the High Court as the upper guardian of children to order scientific tests if it is in the best interests of a child. This would overrule a man’s refusal to undergo a paternity test.
I am divorced. Can I move abroad with my child?
South African family law does not explicitly govern international child custody/care matters. However, the Children’s Act states that if one parent intends to leave the country with the child and relocate, the consent of both parents is required.
The best interests of the child(ren) are the uppermost concern. In certain instances, the move might be in the child’s best interest if it, for example, results in the enhancement of the child’s quality of life or education.
International child custody is dealt with on a case-by-case basis, taking all considerations into account, especially the best interest of the child(ren).
It is critical to follow the correct procedure and give due consideration to the law. Taking a child overseas without the consent of the other parent amounts to child abduction and can have very serious consequences.
What is interim maintenance and am I entitled to it? Can the order be varied?
Where a divorce is contested and is taking a long time to conclude, one or other spouse may apply to the court for a Rule 43 interim maintenance order. Rule 43 maintenance is designed to ensure interim arrangements for a number of issues, not only financial. It can provide:
- Interim maintenance for the minor children and in some cases one of the spouses (e.g. if one is financially dependent on the other) until the divorce is finalised
- A contribution towards legal costs
- Interim care and contact with the child/children
- Interim custody of the child/children
Because of the interim nature of a Rule 43 order, such an order may not be appealed. However, a party can approach the court to vary the order. To be successful with the variation of the order, the party in receipt of interim maintenance must prove a change in “material circumstances”, which justifies the variation or reduction.
Property Law & Evictions
I am a tenant. Can my landlord disconnect my water or electricity supply?
No. As a tenant, you have certain rights. These rights include the right not to have your electricity or water supply disconnected. If your landlord does this, it amounts to an act of spoliation, which is the wrongful deprivation of another’s right to possession. Our courts do not allow landlords to take matters into their own hands.
I am a landlord. How can I evict a non-paying tenant?
Firstly, you must send the tenant a letter giving them the opportunity to rectify the breach of the lease (i.e. non-payment of rent). If they fail to respond or to rectify the breach within 20 days, the next step is to cancel the lease agreement and commence with the eviction process. You apply to the court to have an eviction notice served by the sheriff on the tenant, who is now considered an unlawful occupier rather than a tenant. A court date is then set and a deadline given for filing an opposing affidavit, should the unlawful occupier want to oppose the eviction.
Can I evict a tenant under the current lockdown regulations?
Under the adjusted Alert Level 3 lockdown regulations, a person may not be evicted from their home or have their place of residence demolished for the duration of the national state of disaster, unless a court order authorising an eviction has been granted by a competent court. Therefore, if you want to evict a tenant, the need for legal representation is paramount to ensure compliance with all regulations, including rental housing legislation.
What is Huur Gaat Voor Koop?
This applies when a property is sold with a sitting tenant. The tenant is protected against the rights of third parties that are given later than the tenant’s rights. This is referred to as the ‘huur gaat voor koop’ maxim in South African law.
The purchaser takes over the lease agreement by stepping into the shoes of the seller.
The new owner automatically acquires all the rights and duties of the landlord under the lease and neither the tenant nor the new owner can cancel the lease without following the provisions contained in the lease agreement itself.
If the new owner wishes to terminate the lease agreement, they must give the amount of notice indicated in the original lease with the previous owner. The provisions of the Rental Housing Act and Consumer Protection Act may apply too.
Can either the tenant or landlord cancel the lease without notice?
The Consumer Protection Act (CPA) allows a residential landlord to cancel a lease agreement 20 business days after giving written notice to the tenant of the tenant’s failure to comply with the agreement, unless the tenant has rectified the breach in the interim. This means that a landlord can only ask the tenant to vacate the premises or start the eviction process after notice of cancellation has been given and 20 business days (one calendar month) have passed.
Under the current lockdown regulations, no one may not be evicted from their home for the duration of the national state of disaster, unless a court order authorising the eviction has been granted by a competent court.
How much do you charge for an eviction?
Nell & Du Toit Attorneys has a flat fee package for evictions, which covers:
- Taking instructions by phone (15 minutes)
- Assessing the lease, and any notices (30 minutes)
- Advising on landlord rights and the overall eviction process (15 minutes)
- Responding to the occupiers by email and letter (30 minutes)
- Calling the occupiers to try negotiate settlement (30 minutes)
The fixed fee is R3 500 (excl. VAT) all inclusive. If this is not effective, we can proceed with an eviction court application. This is charged at a flat fee starting at R15 000.
What rights does a lessee have? Do visitors to the property have any rights?
The lessee (tenant), their household and their visitors have certain rights under law. These rights include the right to not have their possessions seized. However, the landlord (lessor) has a tacit hypothec over the movable assets on the leased premises. Tacit hypothec can be exercised in instances where, for example, rent has not been paid.
The tacit hypothec gives the landlord the right to attach or remove the lessee’s movable property from the premises. It acts as a remedy for the landlord when rent is outstanding.
However, the assets brought onto the premises by a visitor are usually for use by the visitor and not the lessee, and are therefore not subject to the hypothec.
Who is responsible for utility bills – landlord or tenant?
The landlord is ordinarily responsible for the payment of rates. Municipal utility bills, i.e. water, sanitation, and electricity/gas, are usually paid by the tenant. This saves the landlord the hassle of paying the invoices and allocating payments from the bill to the tenant.
However, if the tenant does not pay the municipality on time, and the landlord has no access to the municipal bills, the property owner can be in arrears and not realise it. The fact that the bills are sent to the tenant does not eliminate the landlord’s liability to pay the utilities.
Criminal Law
I have a criminal record. Can I have it removed?
Yes, if 10 years have elapsed from the date of the conviction. This is called “expungement”. After 10 years have elapsed, we can apply for a clearance certificate issued by the Criminal Record Centre of the SAPS. We complete application forms II and III and deliver them, together with various attachments, to the Director-General for the Department of Justice and Constitutional Development.
If the application is successful, the Director-General will issue a Certificate of Expungement directing that the conviction(s) and sentence(s) be expunged. The process takes approximately three months. This means that the criminal record no longer exists and does not need to be disclosed, e.g. on job applications.
The certificate of expungement must be submitted to the head of the Criminal Record Centre of the SAPS within 14 working days after the Director-General has issued it. Within 21 working days, the head of the Criminal Record Centre will issue a receipt and confirm if the conviction/sentence has been expunged. In total, the application for expungement takes approximately four months from finalisation of all required documentation and costs approximately R15 000 excluding VAT.
What are my legal rights when I am stopped at a roadblock? Can I be forced to undergo a breathalyser test or have my blood drawn?
If you’re stopped at a roadblock under suspicion of DUI, you will be breathalysed. In a traditional roadblock, if you’re over the legal limit you will be taken into custody and sent for a blood alcohol test. If the roadblock is a mobile alcohol evidentiary unit, your blood will be tested immediately. If you are innocent you will be released. If you are over the limit, you are more likely to be charged, as you will not need to be transferred to a testing centre, which could result in a lower blood alcohol level due to the delay. You will be allowed to phone a lawyer. If you’re detained, you have the right to consult your lawyer or apply for legal aid if you can’t afford a lawyer. The police must inform you of this right. You may be released on bail or you may be detained until your court appearance.
Can I be arrested at a roadblock for outstanding traffic fines?
No. The police can only arrest you for an unpaid fine if a valid warrant of arrest has been issued. The arresting officer must advise you of the reason for your arrest and you should demand to see a copy of this warrant at the time. If a copy of the warrant isn’t available, then you can bring a civil case against the police. You are entitled to compensation if the arrest or subsequent detention proves to be unlawful.
What should I do if I am arrested?
Call a bail attorney or someone who can contact a bail attorney for you as soon as possible.
What is an admission of guilt fine? Is it the same as bail?
If you have been arrested for a minor offence and you have been detained in custody, the arresting officer may give you the chance to sign an admission of guilt and pay a fine. This takes the place of a court appearance. It is not the same as bail, which is a sum of money you pay to be released from custody until you stand trial. With an admission of guilt, you admit you are guilty of the charge and pay a fine, and you are set free. There is no trial in court.
Can your lawyer bail you out of jail?
Yes! You have the right to legal representation, and the police should inform you of this. Ensure that your attorney has as much information as possible (personal details, reasons for arrest, reason for being detained, case number etc.)
How is bail calculated in SA and how much does bail usually cost?
Different factors are considered when deciding on the amount of bail. Seriousness of the offence is an important factor together with what the interests of justice permit. Factors such as the likelihood of additional offences being committed once out on bail, the flight risk, opportunity to intimidate witnesses and jeopardising the trial will all be considered. Bail can be set at hundreds of rand, depending on the seriousness of the offence. The amount is usually determined by the magistrate’s discretion.
Is fraud a criminal or civil matter?
Fraud is a criminal offence. However, it can also lead to civil claims where victims seek damages for losses suffered.
Can you go to jail for fraud in South Africa?
Yes. Fraud carries a risk of imprisonment, especially in high-value or repeat cases.
What is the difference between fraud and forgery?
Forgery involves creating or altering a false document. Fraud is broader, covering any misrepresentation intended to cause prejudice.
