20/04/2016
PRACTICE AREA
*ANTENUPTIAL AGREEMENT
Are you and your significant other deciding to take that big leap, but not sure how to protect your personal or business interests? Well we are here to advice you on the best way forward! Before parties enter into any marriage relationship, be it a customary or civil partnership, an important decision has to be made by both parties. Will the marriage be in community of property, out community of property and will the accrual be applicable on the marriage or not. In our law system marriages in community of property are the most common marriage regime. This effectively means that when parties say “I Do!”, the marriage will automatically be regarded as a marriage in community of property and each party will enjoy one undivided half share of the assets, either acquired before or after the marriage. Unless, the parties sign an Ante Nuptial Contract before the marriage is solemnized. The purpose of an Ante Nuptial Contract was therefore written into our legislation to avoid the normal rules and regulations which will apply on the marriage if the parties were married in community of property and means that each party may enjoy the benefits of their own assets, either acquired before or after the marriage. It is important that the parties have a clear understanding of the different types of marriage regimes in South Africa as well as the consequences, benefits and risks of each regime provides before parties entering into a marriage. We at Martin Phalakathsela Inc Attorneys strive to assist our clients with advice, drafting and registration of the agreement and to ensure that they make the correct decision according to their specific needs. We charge an “all inclusive fee” for the consultation, drafting
*DIVORCE
It is common knowledge that a high percentage of marriages in South Africa eventually comes to an end by way of divorce. Although a divorce proceeding is not a pleasant experience, it is the only way for both of the parties to have a clean break and to pursue a happier future. In South Africa, we have a “no fault” system of divorce, which basically means that a divorce will be granted if one of the parties believes that there has been an ‘irretrievable breakdown of the marriage relationship’ and that there are no reasonable prospects of restoring it. Therefore, a marriage can be dissolved even if one of the parties does not wish to get divorced. If there is child(ren) born of the marriage some issues may arise such as custody and maintenance battles. The courts will be reluctant to grant a degree of divorce unless the Court is satisfied that the conditions of divorce do not reflect the best interest of child(ren). Divorce proceedings can be a very emotional experience for the parties involved and our goal is not just to provide excellent legal services at reasonable costs but also to provide you with the necessary support during these difficult times. We are here for you whether you need legal representation in divorce proceedings or just advice on issues regarding divorce proceedings.
*DECEASED ESTATE
Like any journey, our lives will always have a beginning and an end. The beginning is announced with tears of joy, the end however leaves tears of sadness. The end, unfortunately, brings with it many problems, like taxes and family feuds. The least of a spouse or family members worry should be about winding up of an estate during this traumatic experience. But, one does need to face reality, and the first question normally is, where does one begin? We understand that when dealing with the loss of a loved one, you do not have the time or the energy to deal with debtors and creditors of the estate and therefore we are here for you to handle the administration process, whilst you focus on the important things in life, like spending time with family and grieving a loved one. The process of winding up a deceased estate can be a painstakingly long process if one does not have the necessary expertise or knowledge. The finalization of a deceased estate can take anything from between 8 to 12 months and in some exceptional cases even longer. The entire administration process is supervised and validated by the Master of the High Court to ensure that the rights of the beneficiaries are protected. One piece of mind a grieving spouse or family member may have is that the cost of winding up an estate is governed by law to a maximum fee of 3.5% (excl. VAT) of the value of the assets in the estate and in most cases the Estate can cover this expense. Our goal is to handle and finalize the administration process of deceased estates in the most efficient and professional manner possible and to provide you with the best possible result. Whether or not the passing loved one left a valid Will or not we are here to provide assistance in the administration procedure of all deceased estates.
*CONVEYANCING
Ownership of immovable property is not obtained on signature of the offer to purchase document or even on payment of the purchase price. Ownership is only obtained on registration of the property, into the buyer's name, in the Deeds Registry Office. Conveyancing is the legal process that takes place when lawful ownership is obtained of immovable property. Each time a property is sold; a new deed of transfer must be drawn up and registered. This is to ensure the security and certainty of an owner's title to his property.
*LAST WILL & TESTAMENT
Every person whom has attained the legal age to enter into any agreement, has come across and signed some sort of legal document, but none as important as that of a Last Will and Testament. The consequences of not having a valid will, or having a poorly drafted will, is disastrous to say the least. The reality is that it will most likely be your loved ones, during a time of great sadness and confusion, who will be stranded to to deal with the problems, some not even having a solution. All of which could have been avoided by having a Will drafted by a professional, whom will assist by expressing your last wishes legally, enforceable and accurate. Many individuals allow their Last will and Testament to be drafted by a large Financial institution because they are considered by public opinion to be experts. The negative factor is that when the time comes to Wind up an Estate you will be assigned to a person behind a desk and become a number on a file. That is why we feel that when the time comes, you will need a professional whom will assist and guide you through the passing of a loved one and even be a shoulder to cry on. We will therefore make sure that your Will is legal, enforceable and according to your wishes, and we can even assist with Winding up of the Deceased Estate. We will further advise on any potential cash flow problems which may arise and deal with any legal issues that might be encountered, from business interests to pension funds. We have the necessary knowledge and expertise to ensure that your Will is drawn in accordance with your instructions and to ensure that your Will has been properly executed and is valid and binding in terms of the South African Wills Act.
*TRUSTS
A trust is a legal entity with its own distinct identity. It may acquire and hold property, shares and other such assets in the interests, and for the benefit, of its beneficiaries, the people for whom the trust was created. Trusts are administered in terms of the Trust Property Control Act, and formed and governed in terms of a written agreement between Trustees and the Founder, known as the ‘Trust Deed’. A trust has its own contractual capacity and it may acquire and sell property, it may acquire shares in a company, or acquire and dispose of any other assets and may sue or be sued. Why should you set up a Trust? Well the answer is that it could save you a lot of money by protecting your Assets, have numerous death and tax benefits. We at Martin Phalakathsela Inc Attorneys offer a full range of services to facilitate the protection of your assets and caring for your beneficiaries when you are no longer capable of doing so. If you have assets or beneficiaries to protect and would like to effectively manage estate duty, you might want to consider creating a trust.
