If you want to protect yourself and your spouse after marriage, you will need an antenuptial contract (ANC). Also known as a prenuptial agreement, this type of contract is often misunderstood by those who think it is about protecting assets in a divorce. In reality, this could easily be one of the most important contracts that you will sign as a married couple. Essentially, the ANC ensures that you and your partner are financially protected even after death.

The antenuptial contract allows married couples to personalise their own matrimonial property regime. Any provisions can be included, provided the provisions are legal, moral and not against the nature of marriage. This document is typically finalised before marriage. There are two types of ANC – one that excludes community of property, profit, loss and the accrual system, and one that excluded community of profit and loss while including the accrual system.

A good lawyer who has experience in executing ANC cases is essential. Understanding the process of seeking an antenuptial contract in 2018 is also important.

Why Do You Need an Antenuptial Contract in 2018?

Things you should know about obtaining a potential antenuptial contract include the following:

  1. Although many people assume that this contract is a way of preparing for divorce, it is not at all about assuming the worst. In reality, this contract is a way to protect both your assets as well as your partner’s assets in the event that one of you is no longer around.

 

  1. Without this type of contract, you will be automatically married in community of property. While this may seem like it gives you the power, it puts you at far greater risk than you may realise.

 

  1. With an antenuptial contract, you will essentially be married out of community of property, with or without accrual. What this means is that you will get to keep your separate assets. You can then deal with your assets according to your own choices, without the risk of losing everything in the event of divorce or death of your spouse or by creditors claims. Although you are entitled only to what you have brought into the marriage, you and your spouse are able to share what you have developed as a couple.

 

  1. Antenuptial agreements are an essential way to ensure that you and your husband or wife are seen as separate entities. If your spouse has any debt, this will protect you from creditors, without the risk of taking on debt. If you have an accrual system, you will only be able to claim your share of a joint estate after a divorce or the death of a spouse.

 

  1. To set up your antenuptial agreement, you will need a highly skilled lawyer in Durban and surrounds or a correspondent in your area who is able to draw up a contract that protects you and your spouse. Your lawyer will need to be a registered notary who is neutral and able to mediate. As a legally binding contract, you will not be able to ignore it, unless you are divorced or your spouse passes away. If you were married in community of property, you can, however, convert to an antenuptial agreement after getting married, even if it costs a fair amount.

Contact Schwenn Incorporated today to find out more about seeking help with your antenuptial contract in KZN.

Wondering how to proceed with litigation in South Africa? This useful guide gives you all the answers you need on surviving litigation in South Africa.

A List of South African Courts

The primary South African courts include the following:

  • The Constitutional Court: This court hears matters regarding the interpretation, protection and enforcement of the Constitution.  This court will also hear matters as first instance if the court feels that the matter is in the interest of justice, affects the community or has a strong point in law.

 

  • The Supreme Court of Appeal: Based in Bloemfontein, this is the second highest court in South Africa and it only deals with cases sent from the High Court. The SCA is purely an appeal court, which means it deals only with appeals and related appeal issues.

 

  • The High Court: Each High Court division has general jurisdiction over the area in which it is based. This court deals with all matters, but generally only hears civil matters involving R400, 000 and above along with serious criminal cases, divorces, money owed etc.

 

  • The Regional Magistrates Court: Deals with matters from R200,000 to R400, 000, this court deals with anything that changes ones status or more serious criminal cases.

 

  • The District Magistrates Court: There are roughly 350 magisterial courts. These courts hear all criminal cases, except treason, murder and rape, and can impose a sentence of under three years imprisonment and a fine of no more than R120,000. Civil cases of R200,000 can also be heard in this court.

 

  • The Small Claims Court: This court deals with minor civil claims of R15,000 or less. Attorneys are not required, but they can assist those seeking advice on minor civil issues.

 

  • The Labour Court: This court hears labour law cases only, ranging from trade union issues to strikes and lockouts, unfair dismissal, discrimination, various other unfair labour practices and work related offences such as theft, misconduct and sexual harassment.

 

  • The Children’s Court: Every Magistrate’s Court in South Africa is a Children’s Court. This court deals with cases relating to the welfare of abused, neglected and abandoned children along with various other cases relating to child welfare. The purpose of this court is to give effect to section 28 of the Constitution which holds the best interests of children to be of upmost importance.

 

  • The Maintenance Court: Every magistrate’s court in South Africa is also a maintenance court, dealing specifically with maintenance issues.

 

  • The Family Court: Dealing with issues such as guardianship and custody of children. This court also helps prevent children from having to appear in court and limit any related trauma.

 

  • The Domestic Violence Court: This court deals with the protection of victims of violence not only within the household unit. It deals with protection orders, damage to property or person where harm is committed either physically, sexually and emotionally to name a few.

 

  • The CCMA Commission: This Commission deals with work related issues usually before they are taken to the Labour Courts. These work related issues are dealt with by conciliation, mediation and arbitration which helps negotiate a solution between parties in conflict or for employees whom are begrudged.

 

Choosing a Court in South Africa

Courts can hear cases only if they have jurisdiction within the given area. That means that you cannot choose the court. Instead, courts are determined by the following factors:

The value of the claim.

Anything  between R15,000 and below  is heard in the Small Claims Court.
Anything between R200,000 and below  is heard in a District Magistrates Court.
Anything above R200,000 but under R400,000 is heard in a Regional Magistrates Court.
Anything over R400,000 is heard in the High Court.

The nature of the claim.

The nature of the claim will also determine the court. For example, a child-related issue will be heard in the Children’s Court or High Court, a maintenance issue will be heard in the Maintenance Court, a labour issue will be heard in the Labour Court, a criminal case will be heard in the High Court or Magistrate Court or a Regional Court, a constitutional case will be heard in the Constitutional Court and an appeal on a current conviction  from High Court will be heard in the Supreme Court of Appeals.

The geographical area.

Finally, another factor that determines the court is the area. Courts typically have authority within certain jurisdictions. If you are based in Durban, you will likely be heard in a Durban court rather than a Cape Town court. This does not apply in the case of the Supreme Court of Appeals or Constitutional Court, however, as these have jurisdiction on a broader country-wide level.

Proceeding With Litigation in South Africa

If you have a good lawyer, you will be taken through the process step by step. To give you an idea of how courts work once matters proceed to trial, here’s what to expect when proceeding with litigation in South Africa:

  • South Africa follows an adversarial trial system that allows both plaintiff and defendant to argue their versions in front of a judge. No jury is present – instead, you will be taking your case to a judge that oversees the entire trial. It is important to note that a judge is an unbiased third party whom will make decisions based on evidence presented from both parties.

 

  • The Plaintiff’s attorney’s on record or advocate  will outline their case before the court, presenting evidence to show that their client’s case is reasonably true. The plaintiff will then close their case once they have given their evidence.

 

  • If there are witnesses for the Paintiff’s case, the attorney or advocate will question them, allowing the other side to cross- examine the witness where lastly the Plaintiff’s attorn ey or advocate will re-examine and close their case.

 

  • The Defendant’s attorney’s on record or advocate then needs to outline their client’s case, showing that there is sufficient evidence to disprove the plaintiff’s case. Once they have finalised their case, they will close.

 

  • If witnesses are required to give evidence, they will be examined in turn by the Defendant’s attorney on record or advocate, then the opposing party may cross-examine the witness where the Defendant will then re-examine the witness and close their case.

 

  • Once both parties have finalised their cases, they will each present their final closing arguments before the judge. No new evidence is permitted during these closing arguments.

 

  • The judge will then make the final ruling decision, after evaluating evidence and arguments from both parties.

Do You Need a Lawyer for Litigation in South Africa?

Every person deserves the right to a fair speedy trial. While you have the choice whether or not to hire a lawyer, having legal assistance is the best way to ensure a positive outcome in your case. A lawyer that works with you each step of the way can also give you peace of mind.

To find out more about seeking professional help with litigation in South Africa, contact our team of legal specialists today.

people are happy when they have a successful mediation

If you are proceeding to mediation in 2018, you may already have some idea of what to expect or you may not be sure where to even begin preparing yourself. Mediation is a process that involves two or more people that are dealing with a dispute. The mediator acts as a third party, assisting both parties in recognising issues, clarifying the needs and rights of both parties, searching for areas of compromise, and ultimately, helping to find a resolution that suits both parties.

The main goal of mediation is to find a way forward that can be reached by both parties. Mediation helps to facilitate discussion in a way that reduces the need to take matters to the courts, it is also has the advantages of being a speedier solution to problems which is less costly.

This strategy has become widely recognised as a peaceful solution for conflict resolution. It is used in both individual and corporate law to resolve a wide range of issues, from maintenance battles to contract issues and many other situations. Mediation gives parties a sense of control and predictability that they might not have during trials, therefore putting their minds more at ease.

In this guide, we take a look at some tips that help you ensure successful, effective mediation in 2018.

How to Ensure Successful Mediation in 2018

Some of the ways that you can ensure successful mediation in 2018 include the following:

1. Beginning the mediation process:

Mediation can occur before or after litigation. It needs to be done before judgement is given, however. If a trial has already begun, both parties will need to agree to continue on to mediation. This agreement usually suggests a more amicable route between the parties as there is a need for compromise.

2. Deferring issues to mediation:

Your lawyer may advise you to consider this course of action. Usually if a trial has already begun and parties have decided to go through the process of mediation, the court would have to be notified and be informed of the outcome of the mediation. This would be in the interest of justice in cases where parties decide that mediation has proven to be unsuccessful and agree to take the matter back to trial.

3. Appointing a mediator:

You could seek help from a lawyer that specialises in mediation in Durban and surrounds. From there, a time, date and venue will be selected for the mediation. If litigation has already begun, both parties will need to provide the mediator with copies of both the plea and summons and any other relevant documentation. All documentation will then be filed. Both parties have the right to be represented during the mediation – this is not mandatory, however.

It must be noted that a mediator is an unbiased third party whose only intention is to keep the interests of both parties in mind throughout the process and especially when considering an outcome. This again ensures that the interest of justice is upheld to the same standard as it would be during any other legal processess in any court.

4. Proceeding after successful mediation:

A successful mediation means that both parties are able to reach an agreement. If this happens, then the mediator will help draft a settlement agreement which will outline the outcome and a solution to the conflict between parties. There is therefore no need to take such matter further as both parties interests have been met through compromise and agreement.

5. Dealing with an unsuccessful mediation:

Sometimes, an agreement cannot be reached, even after mediation. In the event of a dispute that cannot be resolved, the matter will then have to be referred to other conflict resolution processes as the problem remains unresolved and conflict will still pursue. Such processes will include going to trial or negotiating the matter on your own.

It is however usually better to settle conflict during mediation as among other advantages mediation offers a more open line of communication as opposed to communications during trial.

At Schwenn  Incorporated, our team of mediators are highly skilled at negotiating the best outcomes for our clients, whatever the issue may involve. To find out more about proceeding with a successful mediation in 2018, contact our team for assistance.