Cluver Markotter welcomes Sherine as a director and Jana to the team

Jana (left) and Sherine (right)

Sherine Roberts has been promoted to the position of director at Cluver Markotter on 1 February 2017. She joined the firm as a senior associate in the property law department in May 2016. Sherine is a graduate of the University of the Western Cape and has been practising as a conveyancing attorney for eight years.

Jana Bothma joined Cluver Markotter as an associate in January 2017 in the Litigation Department, where she focusses predominantly on eviction proceedings. She studied at Stellenbosch University where she also obtained her Master’s degree in law. Jana completed her articles as a candidate attorney at Stellenbosch University’s Legal Aid Clinic.

We congratulate Sherine on her promotion and welcome Jana to the team of professionals and wish them success with their careers at Cluver Markotter.

Cluver Markotter verwelkom vir Sherine as direkteur en vir Jana tot die span

Sherine Roberts is op 1 Februarie 2017 tot direkteur van Cluver Markotter bevorder. Sy het in Mei 2016 as senior assosiaat in die eiendomsafdeling by Cluver Markotter aangesluit. Sherine is ʼn gegradueerde van die Universiteit van Wes-Kaapland en praktiseer reeds vir agt jaar as aktebesorger.

Jana Bothma het gedurende Januarie 2017 as ʼn assosiaat in die litigasieafdeling, waar sy hoofsaaklik in uitsettingsaangeleenthede spesialiseer, by Cluver Markotter aangesluit. Sy het ʼn Meestersgraad in Regsgeleerdheid by die Universiteit van Stellenbosch verwerf. Jana het haar kandidaat-prokureurskap by die Regshulpkliniek van die Universiteit van Stellenbosch voltooi.

Ons wens Sherine geluk met haar bevordering en verwelkom vir Jana by ons span. Ons wens hulle voorspoed met hul loopbane by Cluver Markotter toe.

Co-owning property with someone else: the ups and downs

What is co-ownership?

Co-ownership involves that two or more people jointly own the same property, for example land. In essence, they legally share ownership without dividing the property into physical portions for their exclusive use. It is thus commonly referred to as co-ownership in undivided shares.

It is possible to agree that owners acquire the property in different shares; for instance, one person owns 70 percent and the other 30 percent of the property. The shares appear from the title deeds registered in the Deeds Office.

The benefits:

In the case of a residential property, the bond repayments and costs of maintaining the home are halved. However, there can be problems, for example when one of the parties involved wants to sell and move, but the other not.

The risks:

If ownership is given to one or more purchasers, without stipulating in what shares they acquire the property, it is legally presumed that they acquired the property in equal shares.

The risks, the benefits and the obligations that flow from the property are shared in proportion to each person’s share of ownership in the property.

The agreement:

If two people own property together in undivided shares it is advisable to enter into an agreement which will regulate their rights and obligations, and also what happens should they decide to go their own separate ways.

The practical difficulties that flow from the rights and duties of co-ownership are captured by the expression communio est mater rixarum or “co-ownership is the mother of disputes”. It is therefore important to agree on the respective rights and obligations, including the following matters:

  1. In what proportion will the property be shared?
  2. Who has the right to occupy the property?
  3. Contributions to the initial payment to acquire the property.
  4. Contributions to the ongoing future costs related to the property.
  5. How the profits or losses will be split, should the property or a share be sold.
  6. The sale of one party’s share must be restricted or regulated.
  7. The right to draw funds out of an access bond over the property.
  8. The consequences of a breakdown of the relationship between the parties.
  9. Death or incapacity of one of the parties.
  10. Dispute resolution procedures.
  11. Termination of the agreement.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

References:

Co-ownership of property: what you need to know


http://www.privateproperty.co.za/advice/property/articles/the-pitfalls-of-property-co-ownership/5046
http://www.jgs.co.za/index.php/property/owning-prop-jointly-the-do-s-and-dont-s

How can a person get married in South Africa?

A person can get married by way of a civil marriage, customary marriage, civil union or religious marriage. A religious marriage is not recognised as a valid marriage, unless a marriage officer officiates, but the spouses in a religious marriage can be protected by law in certain instances.

What are the general requirements for a valid marriage?

  1. Both persons to the marriage must give consent to get married and must be older than 18 years of age.
  2. A person younger than 18 years of age, needs the permission of his/her parent/s or guardian/s to get married.  No person younger than 18 years of age can enter into a civil union.
  3. The marriage must be lawful in terms of rules such as the following:
    1. Persons who are closely related (such as brother or sister, or parent and child) may not get married.
    2. A person may not be party to more than one marriage at a time, except for customary marriages.
  4. Certain formalities must be adhered to, such as that the marriage must be concluded by a marriage officer in the presence of two witnesses.
  5. A marriage must be registered at the Department of Home Affairs.

The difference between marriage in and out of community of property:

  1. MARRIAGE IN COMMUNITY OF PROPERTY:  There is one estate between a husband and a wife.  Property and debts acquired prior to or during the marriage are shared equally in undivided shares (50%).  Both spouses are jointly liable to creditors, with certain exceptions.
  2. MARRIAGE OUT OF COMMUNITY OF PROPERTY WITHOUT THE ACCRUAL SYSTEM:  The spouses have their own estates which contain property and debts acquired prior to and during the marriage (“what is mine is mine and what is yours is yours”).  Each spouse is separately liable to his/her creditors.  Prior to the marriage, an antenuptial contract must be entered into to indicate that the marriage will be out of community of property.
  3. MARRIAGE OUT OF COMMUNITY OF PROPERTY WITH THE ACCRUAL SYSTEM:  This is identical to a “marriage out of community of property”, but the accrual system will be applicable.  The accrual system involves the calculation of how much the larger estate must pay the smaller estate once the marriage comes to an end through death or divorce.  Only property acquired during the marriage can be considered when calculating the accrual.  The accrual system does not automatically apply and must be included in an antenuptial contract.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

References:
https://www.legalwise.co.za/help-yourself/quicklaw-guides/marriages/

Adopting a child in South Africa

Adoption is the legal act of permanently placing a child with a parent or parents other than the child’s birth mother or father.
A legal adoption order ends the parental rights of the birth mother and father and places the parental rights and responsibilities with the adoptive parents.There are 4 phases in the adoption process:

1. Application

In South Africa, the only way in which you can legally adopt a child is by working through an accredited adoption agency, or with the assistance of an adoption social worker, functioning within the statutory accredited adoption system.

When working through an adoption agency, the process usually starts with the prospective adoptive parents submitting an application to the agency.
Each agency has its own set of requirements – it’s a good idea to phone the particular agency to get their set of criteria before you actually apply in writing.

2. Screening process

All prospective adoptive parents are required to undergo a screening and preparation process. This normally involves:

  • orientation meetings,
  • interviews with a social worker,
  • full medical examinations,
  • marriage and psychological assessments,
  • home visits, and
  • police clearance and the checking of references.

The screening process allows social workers to get to know prospective adopters as a family, their motivation to adopt and their ability to offer a child a warm, loving and stable home.

3. Waiting list

Once the screening process is complete, applicants are placed on a waiting list for a child. Applicants have their own ideas and wishes about the child they wish to adopt.

They can decide about the age and sex of the baby or child they would like to adopt, and adoption agencies will try to meet those personal expectations.

4. Placement

The official placement of the child with the adoptive parents is a legal process, carried out through the Children’s Court.

Once the child has been with the new parents for a period of time, and the social worker has assessed the adoption to be in the best interests of the child, the adoption is finalised through the Children’s Court.

The child then becomes the legal child of the adoptive parents as if the child was born to them and has all the same rights as a biological child.

The position of an adopted child is the same as that of a biological child of the adoptive parent/s and all parental rights and responsibilities his/her biological parent/s or previous legal guardian/s had will be terminated. The adoptive child takes the surname of the adoptive parent/s (unless the Children’s Court decides otherwise). An adoption will not affect the adoptive child’s rights to property s/he obtained before the adoption.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

References:
https://www.legalwise.co.za/help-yourself/quicklaw-guides/adoption/
https://www.westerncape.gov.za/service/adopting-child