Ask admitted attorney and founder of Sister in Law, Tebello Motshwane, all your legal questions for expert advice.
Q: My husband and I have been married for three years, out of community of property with accrual. He has a child from his previous marriage and over the years, has been sending money occasionally to support the child. He does not have a consistent income, so he sends whenever he can. I am employed full time and I want to prepare myself: my husband's ex has filed for maintenance and will be in court for the hearing soon. Will I be requested to file my payslips or any proof of income?
A: Ordinarily speaking, it is the biological parents who are liable to pay maintenance towards the upkeep of their child. A step-parent would need to legally adopt the child in order for them to be liable for maintenance. Given that you are married out of community of property and have not legally adopted your stepchild, you will not be obliged to produce any proof of income during your husband's court proceedings. Had you been married in community of property, then by default, the income of the joint estate would be liable to pay maintenance. In that context, you would be subpoenaed to produce your proof of income.
Q: How can one dissolve a customary marriage that is not registered at Home Affairs?
A: An unregistered customary marriage is a valid marriage and has equal standing as a registered customary or civil marriage. Customary marriages are governed by the Recognition of Customary Marriages Act 120 of 1998. Section 8 of the Act states that a customary marriage may only be dissolved by a court, by a decree of divorce on the ground of irretrievable breakdown of the marriage. You are customarily married if you meet the following requirements: both prospective spouses must be over 18 years, both consent to be married to each other under customary law, and the marriage negotiated and entered into or celebrated in accordance with customary law. Because your marriage is not registered, the divorce proceedings will be carried out at the High Court and you will need the services of an attorney to assist you with the process.
READ MORE | What are the legal requirements for a customary marriage? - 'It must be negotiated and celebrated'
Q: My late husband and his brother inherited a house from their deceased parents. After getting married, we moved into the house because the brother had indicated that it would need someone to take care of so it would not be vacant. After six years, the brother said he no longer had interest in the house and sold his share to my husband, who paid half to buy him out. Shortly after my husband's funeral, the brother came back to the house, saying me and the children would need to move out in the next six months because now that my husband is deceased, the house would revert to him. We have been living in this house for 13 years. Do I have any rights to it?
A: Legally, a surviving spouse inherits everything from their deceased spouse if they died without a will. The only way the brother can have the house back is if your husband left a will stating that he should inherit it. In the absence of a will, you will legally inherit the house and all other assets belonging to your husband.
Q: I'm getting married soon, and my fianc and I would like to get married out of community of property with accrual. How would that affect me?
A: This marital property regime is essentially a combination of a marriage in community of property and out of community of property without accrual. A spouse whose estate has shown no or a smaller accrual or growth can share in the growth of the estate of the other spouses, while keeping their estates separate (i.e. you would not be liable for each other's debts), thereby protecting each other from the insolvency of the other spouse. This regime is most beneficial to spouses who are both able to contribute to the marriage, and therefore share equally in the financial benefits generated during its existence. This regime also benefits a spouse who does not contribute financially, but rather to maintaining the household and upbringing of the children.
The spouse achieves recognition by receiving an ultimate financial reward at the end of the marriage, which eliminates the unequal distribution of assets. This system provides protection against insolvency of the other spouse - the right to the accrual of the solvent spouse is postponed until the dissolution of the marriage. Therefore, creditors cannot lay a claim against the accrual as it does not form part of the estate of the insolvent spouse (this eliminates the risk posed in marriages in community of property, where the creditors will lay a claim against the joint estate).
Q: My husband and I have been married for nine years, in community of property. However, I have recently learnt that it is possible to change our marriage from in community to out of community of property. Is this true?
A: Yes, section 21(1) of the Matrimonial Property Act allows for a married couple to jointly apply to the High Court for amendment of their existing matrimonial property regime. Once the court grants the order, you will need to get what is called a postnuptial agreement, which will be out of community of property. The costs involved in changing your regime are slightly higher than of concluding a marriage contract before you get married, mainly because of the court application.
Q: I recently got approved by the bank to purchase a house advertised for R800 000. Shortly after the offer to purchase was signed by myself and the seller, the seller received an offer to buy the house for R900 000. I then let them know that I was willing to match this offer. A few days later, I saw the house being advertised for R1 million. Do I have any rights, given that the transfer of the house had not taken place yet?
READ MORE | Zamantungwa Khumalo is paving her own success one property at a time
A: A good place to start is reading the terms of the offer to purchase (OTP) itself. An OTP is a valid and binding agreement, and usually there will be a clause stating that the purchaser needs to obtain a guarantee from the bank within a stipulated time, failing which the house will be placed on the market. If you were able to secure the bank guarantee within the stipulated time, then you can enforce your rights by either claiming specific performance, i.e. that the seller continues with the sale of the property to you or claim damages for breach of contract.
Q: My partner and I have been living together for three years. We have not spoken about marriage, but we have bought a few assets together. How do we protect our assets until we decide to get married?
A: A good document to have is what is called a cohabitation agreement. This is a written agreement between an unmarried couple intending to live together indefinitely. It formalises and regulates the legal obligations towards each other. Terms which may be included are: the description of each party, declaration that none of them is married, declaration that no money will be exchanged for sex, disclosure of finances and/or any financial dependency on a party, joint property and division as well as death of a party. For legal certainty and protection, it is advisable for each party to have a will in place in order to dictate what should happen to their individual assets in the unfortunate event of death.
About Tebello
Tebello Motshwane is an admitted attorney and a notary awaiting admission in the High Court of South Africa. She established Sister In Law in May 2018 after a number of women would approach her on social media and gatherings for legal insights pertaining to their personal affairs.
She came to realise that the lack of education for women dates back to when her parents divorced and her mother was not privileged enough to know basic legal concepts pertaining to the consequences of divorce, child maintenance and estate planning. Her interest in this field is what led her to pursuing a degree in law and ultimately incorporating Sister In Law, which is "a platform dedicated to empowering women (and the community)through legal education".
Tebello is a recipient of the Mail & Guardian top 50 Powerful Women award in 2022, an alumni of the Nelson Mandela Washington Fellowship for the 2021 cohort and is a 2020 Mail & Guardian Top 200 Young South African in the Justice & Law Category.
