The holiday season can cause much unnecessary conflict between separated and divorced spouses or split families. Navigating the holidays can be a very emotional time, whether it is your first or your fifteenth Christmas, sharing your time with your children.

A good divorce settlement agreement or parenting plan should have clear and specific guidelines for the sharing of the holiday season.

Holiday seasons often include travel plans. If these are going to interfere with the dates that the other parent should spend with your children, make sure that they are aware of these dates and that you have their agreement in advance.

If you are travelling internationally, on top of valid passports you will need to ensure that you have sufficient written legal consent from the other parent who is not coming on holiday with you and the children. This needs to be attended to in advance and must comply with the requirements of South Africa and the country that you are entering.

Here are some tips on ensuring that your holiday season runs as smoothly as possible:

  1. Try to make your plans and reach an agreement as soon as possible – last minute plans often come up against resistance.
  2. Take into account your existing arrangement and your previous holiday season – who had the children for which periods last year.
  3. Stick to the plans that you have made – the other parent has made plans around this arrangement already.
  4. Check your emotions – your reactions will be dictated by heightened emotions over any special time like the holiday season.
  5. Remember that the interests of the children are paramount – it is about what is best for the children and the parents will take a back seat.
  6. Try not to let extended family and friends interfere as they are not part of the legal agreement that you have in place.
  7. Do not always expect one parent to compromise – it needs to be a two-way street.
  8. Keep lines of communication open particularly for emergency situations.
  9. Be considerate of your children and the other parent.

If you require any assistance in navigating an agreement, a divorce or a parenting plan please contact our offices.

Written by Liza Bagley contact number 031 003 0630 and email address Liza@schwenninc.co.za

Should a spouse be entitled to payment of a monthly amount of maintenance for themselves when they get divorced?

The simple answer is “no”.  Our courts try to ensure what is known as a “clean break principle” on divorce, ensuring that as much as possible that each party goes their separate ways after a divorce. 

This started with courts refusing spousal maintenance orders in some of the following circumstances:

  1. Where the parties are young;
  2. Where the party is qualified in a field;
  3. Where the parties have no children;
  4. Where they have their own job;
  5. Where the party is in good health; and
  6. When the marriage was a short one.

In the past it was common that women would stay at home raising children and looking after the family home, however, this has become more rare.  In these kind of situations, the court favours the application of “rehabilitative maintenance.”  This upholds the clean break principle, giving the spouse maintenance for a fixed period of time until they are financially self-sufficient and upskilled to enable them to be gainfully employed.

In the cases where the courts grant maintenance orders, the court will have to take the following into account:

  1. The current or expected wealth of the party;
  2. The earning capacity of the party;
  3. The financial need or obligation;
  4. The ages of the parties;
  5. The duration of the marriage; and
  6. The standard of living before the divorce.

At Schwenn Incorporated we look at trying to get settlements during a divorce that are the most fair and favourable for our clients, as cost effectively as possible. If you have any questions on spousal maintenance or divorces in general do not hesitate to contact us today on 031 003 0630/ info@schwenninc.co.za.

Written by Jessica Schwenn and Charmaine Schwenn.

#schwenninc #newblog #spousalmaintenance #yougotschwenned #subscribe

  Residential properties : Securing your security deposit Section 5 of the Rental Housing Act (RHA) allows a landlord to take a deposit from a tenant before the tenant moves into the property. This amount must be stipulated in the lease agreement and is generally an amount that is equal to 1 month rental. The […]

Residential properties : Securing your security deposit

Section 5 of the Rental Housing Act (RHA) allows a landlord to take a deposit from a tenant before the tenant moves into the property. This amount must be stipulated in the lease agreement and is generally an amount that is equal to 1 month rental.

The RHA, requires that the landlord deposits the money into an interest bearing account, with a financial institution. A tenant has the right to receive a statement of interest earned. The tenant is therefore entitled to receive their deposit and all interest earned during the lease period at completion of the lease.  The tenant will have to provide FICA information for the landlord to invest the deposit amount.

As further protection, a tenant should ensure the landlord or managing agent is registered with the Estate Agency Affairs Board.

A landlord is entitled to deduct any expenses incurred from repairing any damage which may have occurred during the term of the lease from the deposit and interest.  This is normally provided for in the written lease agreement.

The tenant has the right to see all repair receipts to ensure the expenses are for genuine repairs that have been undertaken by the landlord. This does NOT include costs for general maintenance of the property which is for the landlord’s expense.

The Importance of a walkthrough inspection

A tenant should always do a pre lease inspection, noting any defects or faults prior to moving in and this should be reduced to writing and sent to the landlord or his agent as soon as possible, or within the time stipulated in the lease. A good idea would be to take photos as this would substantiate any claims of faults and will supplement any “snag lists’.

Some landlords often agree to fix faults at a later stage and this should be viewed with some suspicion as often the faults are not fixed and the landlords then blame the tenants for any damage. A tenant is not responsible for wear and tear and should not be forced to repaint the walls (unless the tenant has caused excessive wear and tear).

Exit inspection

A tenant must always insist on having an exit inspection and this should be done when the lease comes to an end. The tenant should ensure that the original snag list is presented and any additional evidence (photographic or otherwise) as well as any additional faults that have occurred during the lease period. A tenant who is intent on getting their full deposit and interest should view this inspection with a critical eye (by ensuring the property is cleaned, the walls washed and any holes patched up).

Rental Housing Act, Amendments

This Act sets out the following criteria for both the landlord and tenant:

  • Setting out the rights and obligations of the parties in a coherent manner;
  • Requiring the lease to be in writing;
  • The contents of a lease must include the following;
    • Names and addresses of all the parties to the agreement;
    • A description of the property;
    • The amount of the rental;
    • Reasonable escalation;
    • Frequency of payment;
    • The amount of the deposit;
    • The lease period and the notice period.

Failure to repay the security deposit and interest, for no legitimate reason, by the landlord is a criminal offence in terms of Section S 16 (aB) (RHA) and is punishable with a penalty or imprisonment not exceeding two years or both.

To ensure your lease agreement is complaint with all the necessary rights and obligations of both the landlord and tenant, contact us on 031 – 003 0630 or charmaine@schwenninc.co.za. #rentals #durbanlawyer #schwennlegacy #leaseagreements #newblogpost

Article written by – Barry Todd

 

CREDITORS, DON’T DISREGARD BUSINESS RESCUE SO SOON AS A WAY TO RETRIEVE YOUR MONIES.

It can be said that there has been an increase in business rescue processes in South Africa.

“Business rescue, as defined by the Companies Act 2008, aims to facilitate the rehabilitation of a company that is financially distressed by providing for the temporary supervision of the company and management of its affairs, business, and property by a business rescue practitioner”.
https://m.fin24.com/Entrepreneurs/Resources/Business-rescue-explained-20150119.

One of the main purposes of business rescue is to ensure that creditors be paid out what is owed to them – albeit less than the full amount of their claim.

Although many get disheartened by the decrease in the payback of the capital amount, the proceedings are almost identical but less extreme to that of liquidation proceedings.

“Liquidation is the process of bringing a business to an end and distributing its assets to claimants. It is an event that usually occurs when a company is insolvent meaning it cannot pay its obligations when they come due”.
https://www.investopedia.com/terms/l/liquidation.asp.

From a glance of the Companies Act, it suggests that although a business rescue plan may discharge a portion of the debt owed to concurrent creditors, it would be the same amount that one would get during the liquidation proceedings in any event. Therefore either way although you may retrieve less than the capital amount they theoretically do the same/similar jobs at the end of the day.

Section (1)(b)(iii) of the Companies Act states that a business rescue plan contemplates an outcome that would indeed be a better result for shareholders than it would have been during immediate liquidation.

However, just like many areas of law in South Africa, there has not been a real consensus by the courts whether the above can be stated as true.

In Oakdene Square Properties v Farm Bothasfontein, the Supreme Court of Appeal decided that it was not intended for the Act to promote an informal type of proceedings as a way of avoiding the consequences of liquidation.

If you are a creditor or a business owner looking for advice on business rescue and/or your options on the best returns possible for your money contact our offices on 031 003 0630 or email Charmaine@schwenninc.co.za.

 

Written by: Jessica Schwenn.

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.