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A contract is an agreement entered into between two (or more) parties with the intention of creating legally binding obligations as recognised by the law.

For a contract to be binding, it does not have to be in writing. An oral or verbal agreement is equally binding. The problem with verbal agreements is that the parties do not have proof of the terms of the contract.

An attorney does not have to draft or review a contract for it to be legally binding. However, if a person drafts his own contract without the assistance of an attorney, he has no assurance that it will be legally binding if a dispute arises. Therefore, it is not wise or good business practice for parties to draft their own contracts without the assistance of an attorney.

In the past, the courts had the power to order what was then called a judicial separation. However, since the coming into operation of section 14 of the Divorce Act, this competency of the court was abolished. Couples who are married and who wish to separate and regulate their continuing proprietary relationship will have to enter into what is now called an extra-judicial agreement.

The main issue of the agreement will be that they will live apart but remain married to each other. If the parties share a home, they should agree who will live in it. If they have children, then they should agree on the parental responsibilities and right as well as the maintenance of the children. They should also agree on spousal maintenance if applicable. If they have debts then they should agree on which party will pay which of the debts.

This agreement will only operate between themselves and will not bind third parties, like creditors. For example, if the parties agree that H will pay the bond on the house and H fails to pay, the bank can still claim the payment from W. Despite this agreement, the parties may still institute divorce proceedings.

When a dispute arises between a couple it is natural that they would want it resolved as speedily, cheaply and without much fuss as possible. Generally, they would also like to keep it as private as possible and involve as few others in the process of resolution. Ironically, in such situations, the first forum that springs to mind is a court of law. Threats of legal action fly to and fro. Often these threats come from family of the parties, while the couple themselves would prefer to keep it as in house as they can. However, as has become patently clear over the last few years, a court of law is in fact the last place to settle a marital disagreement. Lawyers will tell you that the wait for a High Court date can be as long as 4 years and that 1 day in such a court can cost between R20 000 and R80 000. For these and other more compelling reasons, couples should first consider other forms of dispute resolution.

It is well recognised that Alternative Dispute Resolution (ADR) methods provide conflicting parties with a more efficient, more cost effective and painless means of arriving at a settlement. Such methods currently in use are Negotiation, Mediation, Adjudication (not by a court) and Arbitration. These pre-litigation alternatives have been successfully employed in international and high-end business dispute resolution for many years. More recently they have also been written into South African labour legislation, and executed by the CCMA and its Bargaining Council agents with thriving success. Therefore it is rather surprising that they are not more readily and open-heartedly put to use in marital disputes where, clearly, they would be right at home. In this article the well known ADR forms of Negotiation, Mediation and Arbitration will be discussed. Discussing Adjudication however will be unnecessary as it does not find application in marital disputes.

Negotiation is nothing fancy or technical and most disputing couples go through this step without even realising that they are in fact negotiating. The arguments and fighting should however not be confused for negotiation. Negotiation takes place when the couple has come to a point that they accept that they have a dispute about each other’s rights and duties and that these should be properly demarcated and given effect to. They may at this stage involve a third person to help in the process, but often not even at this stage.

Mediation on the other hand will involve a third person, a neutral person, a person with knowledge and experience in dispute resolution. Maybe even knowledge of the law and its requirements. Mostly, however, the skill and experience in being able to make one party to a dispute see the other’s point of view. The mediator will not make a judgement. He will simply assist the parties to come to a settlement. He will not even propose settlement terms. The terms of the settlement must come from the parties themselves.

The most widespread form of mediation currently in use in South Africa takes place in labour dispute resolution. The Labour Relations Act empowers the CCMA to provide this facility to the labour sector and is commonly known as conciliation. Similar to the Labour legislation so too the Muslim Marriages Bill wants to introduce compulsory mediation for Muslim couples facing a dispute.

What is envisaged is that before an aggrieved spouse wants to institute legal action, that spouse must first allow the dispute to be resolved through mediation. The main objective of the mediator will be to allow the parties to find a resolution by themselves. He will do this by helping them to look at the matter from the other party’s point of view and by forewarning them of the consequences of non-resolution. He may even go to the point of either alluding to or clearly spelling out to the couple what the outcome would be if the matter goes further on to Arbitration or Adjudication (by a court).

A successful outcome to mediation will result in an agreement between the couple, which is commonly referred to as a settlement agreement. The mediator will capture this agreement in a document and it will be legally binding just as any other contract. Such an agreement will obviously bring the mediation to a close as the dispute will have been resolved.

However, in the event that the mediation is not resolved, the mediator will declare it so by issuing a certificate of non-resolution. The Bill envisages that if the party who applied for the mediation wishes to continue pursuing a resolution, that party must first subject the dispute to be resolved by Arbitration before it can be placed before a court.

Unlike mediation, where the parties have more control over the outcome, arbitration is more structured and subject to strict rules of procedure. The arbitrator is completely in control of the proceedings and will ensure that the outcome is fair and in accordance with the law. The ruling that is made by the arbitrator is called an award and it is final and binding on both parties. Current arbitration legislation does not allow for an award to be appealed to a court however any one of the parties may apply for a review of the award. A review is a procedure that focuses more on the conduct of the arbitrator in coming to the decision than at the award itself.

The view that an arbitration award should not be final and that the parties should have the right to an appeal is not without merit. It should however be keep in mind that just as an arbitration award can be adverse so too can a court judgement be. The idea is to ensure that the procedure is fair, quick and inexpensive and that the outcome provides a re-balancing of the rights and obligations of the parties. It should also avoid the situation where the parties exhaust the entire estate that they are fighting over in legal fees. So by the time they have completed all the appeals they have nothing left anymore.

Even though Mediation and Arbitration is not commonly practiced in family disputes, the Muslim community has a long standing and proud tradition of voluntary non-binding mediation and arbitration practice. These services have been provided to Muslims by the Ulama and Ulama Judicial Institutes for many, many years. Over the last few years some Judicial Institutes have even included the expertise of lawyers and advocates on the Ulama Arbitration tribunal.

The main difference in these institutes providing these services under the Muslim Marriages Bill is that the mediation will be compulsory and not only will the arbitration be compulsory but its outcome will also be binding. So now, when a party comes to a Muslim Judicial institute for a decision, they can be assured of an outcome that will not only be in line with the Shariah but it will have the force of the Law. Current submissions of the Bill do not exclude the possibility of private arbitration which will be offered by lawyers and others with a legal background.

When someone dies without a will, it is called ‘dying intestate’. In the absence of a valid will, the law decides who gets your assets, who will look after your minor children (as guardians) and your individual wishes or personal situation will not be taken into account – the same laws apply to everyone who dies without a valid will.  It can be difficult to work out who should apply for permission to deal with a deceased person’s estate without a will.

For married couples, the law will most likely see your husband or wife inherit your estate, however for domestic or de facto relationships (including same-sex couples) you would need to have lived in a domestic or de facto relationship with your partner for two years or have a child together before your partner can benefit from your estate if you die without a will.

The safest way to make sure your estate goes to those you wish, and to ensure your partner gets what you want them to inherit from your estate is to make a valid will.

What about your children and those who relied upon you?

If you have children or other family members who depend on you financially, it is vital you have a valid will to record your wishes.

Ease the stress and pain

Losing a loved one is an incredibly difficult and sad time. During this time of grief, the last thing your family and loved ones should have to endure is sorting everything out when you die in the absence of a will.

A simple, valid will that sets out your wishes can alleviate a great deal of stress on those left behind.

What is a ‘simple will’?

Your will does not need to be a complex and lengthy document, you don’t need to describe all of your assets in detail or pick out specific ‘bequests’ to specific people.  Your will can simply set out:

• who you wish to have your money, real property (such as your home or investment property) and possessions when you die (collectively known as your ‘estate’)

• the person(s) you wish to be responsible for organising your estate and carrying out the instructions set out in your will (the ‘executor’)

• if you have minor children, who you wish to appoint as guardian(s) of your children.

You may also include in your will any other wishes you may have, such as instructions for your burial or cremation (and location).

What is a ‘legally valid’ will?

A will is legally valid as long as the will:

• accurately describes how your estate is to be distributed upon your death

• is signed and dated by you in the presence of two independent adult witnesses who also sign the will (witnesses who are not beneficiaries in your will)

• was made when you were mentally fit to make decisions on your own and when you were under no pressure or influence as to who should benefit under your will.

How to make a valid will

We can assist you with the preparation of a simple will to protect your loved ones. We can also prepare the appropriate power of attorney specific to your circumstances as required.

Most important is that you don’t put it off – it is vital that what you leave behind is passed to the people you intended.

General Advice Warning

The information in this website is for informational purposes only. It is not intended to be legal advice, the content is general in nature and as such it does not take into account your personal circumstances. You should consider whether the information is appropriate to your needs and seek professional advice specific to your personal circumstances.

The law requires that every child be provided with basic nutrition, shelter, basic health care services and social services. The law places these obligations first and foremost on the parents of the child. This duty rest upon each parent in relation to that parents means. It is commonly thought that the duty rests solely on the father and others may even think that the duty rests on each parent equally. Neither of these situations accord with the law. For example, if the mother earns R300 000 per annum and the father R200 000 per annum, the mother will be responsible for 60 percent and the father 40 percent of the child’s maintenance.

Parents must provide the child with food, clothing, accommodation, medical care and education. The question that always arises in these matters is how much maintenance must be paid. The law takes into account the needs of the particular child in question. Some children may require extra medical care or educational attention. Therefore the court will take into account the circumstances of each child in calculating the total cost of maintaining that child. Then court will require the parent instituting the claim to provide it with receipts for rent, electricity, water, groceries, clothes, transport, school fees, books, uniform, sport, extra-curricular expenses, medical expenses, holiday expenses and any other expense so that it can make its calculation.  The court will also require that these expenses be reasonable in the circumstances.

An applicant parent can institute a claim through the offices of an attorney or do a DIY claim by going directly to the Magistrates court in the area where the children live and lodge the claim with the clerk of the maintenance court. The clerk may assist the parent in completing the forms. The court will require the receipts mentioned above as well as a copy of the applicant parent’s ID, proof of income (if any), the child’s ID, a copy of divorce order (if applicable), proof of any particular circumstances regarding the child (like disability etc.) and all then information the applicant parent may have on the other parent.