The world has found itself in unprecedented territory. The President of South Africa has declared a national state of disaster causing the country to go into complete lockdown. In accorda

Although in South Africa our Constitution allows us the freedom of testation, matrimonial property regimes place legitimate limitations on such rights.

The Wills Act provides that upon divorce, if a bequest is made to a divorced spouse and should the testator die within three months of the divorce, the divorced spouse is deemed to have predeceased the testator, and the testator’s alternative heirs inherit. If a will is not amended within three months and a testator dies thereafter, it is considered that the testator intended the divorced spouse to benefit and the divorced spouse will receive their benefit as stipulated in the will. It is therefore very important to update your will in the event that you divorce your spouse.

Being married in community of property results in both spouses owning everything in undivided and equal shares. Upon death, the executor administers the joint estate of both spouses, and the surviving spouse by operation of law, receives an undivided half share of the estate. The remaining half share is the share which the deceased spouse’s heirs will benefit from in terms of the will of the deceased spouse.

Only the banking accounts of the deceased spouse are frozen once the bank is notified of the death of the deceased. The surviving spouse’s banking accounts are not frozen.

It is possible in a will to provide that any inheritance which an heir receives is excluded from such joint estate as the heir may have. In such an event, such an inheritance is excluded from the heir’s joint estate upon his/her death.

Being married by an antenuptial contract without accrual results in both spouses having their own separate estates. If you are married by antenuptial contract without accrual, and you are the first dying spouse, only your assets are administered by your executor.

Being married by antenuptial contract including the accrual system has the effect that you have separate estates but you agree that what you accumulate during your marriage is shared. It is possible in your antenuptial contract to have a commencement value at the outset of the marriage which is then excluded from the accrual, or to exclude specific assets from the accrual, for example a house/a business interest. Upon death, the estate of the spouse with the smallest growth has a claim against the estate of the spouse with the greater growth.

Contact Margaret McCullough on 033-8459700 should you require clarity on the effects of your matrimonial regime on your estate.

nce with this, there has been a great deal of confusion pertaining to the movement of children during this time. The Minister of Social Development amended the Directions issued in terms of Regulation 10 (8) of the Regulations made under Section 27 (2) of the Natural Disasters Act to prevent and combat the spread of COVID-19.

In a nutshell, if you are a divorced parent and are sharing custody of your children, you do not need a special permit to aid in the movement of your children during the lockdown. All that is required is that the parent or caregiver transporting the child concerned must have in his or her possession an existing Court Order in place alternatively an existing Parenting Plan that is registered with the office of the Family Advocate or the birth certificate of the child or children as required. Skype, FaceTime and other forms of interaction are crucial to heading off unneeded conflict during what is currently an incredibly aggravating time for everybody especially kids.

It is common cause that many people have received pay-cuts, retrenchment packages and some have even lost their jobs. This has undoubtedly put an immense amount of strain on the majority of the South African population. Even more so for people who have been ordered to pay maintenance in terms of a Rule 43 application or a maintenance order. The Government Gazette dated 26 March 2020 (No. 43167) provides that during lockdown, in respect to maintenance matters, only first-time applicants and those seeking to enforce an existing maintenance order may approach the maintenance court. While you cannot apply for a variation of a maintenance order during lockdown, once lockdown is over you can approach the court and launch an application for a variation of an existing order should you meet the necessary requirements. Kindly contact our family law experts at J Leslie Smith & Company incorporated on 033 845 9700 for more assistance.