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May 27, 2016

Who gets my assets if I die with no will and heirs?

What happens to your assets if you die without a will and any living relatives?

A client advised that a friend died without leaving a will. His assets include a townhouse, two cars and a few bits of furniture. Who inherits?

The common law provides that, in this case, the State acquires the whole estate as bona vacantia. The matter is now regulated by sections 35(13) and 92 of the Administration of Estates Act 66 of 1965. The procedure is that where the intestate heirs cannot be identified or if there are no intestate heirs, the executor must sell all the assets in the estate (in this case, the townhouse, etc.) and, after payment of the estate’s debts, pays the residue into the Guardian’s Fund. If nobody can prove that they have a claim to the estate as an intestate heir of the deceased, then after 30 years have elapsed after payment of the funds into the Guardian’s Fund, the money accrues to the State.

You will find a really useful overview on the distribution of an estate of a person dying with or without a will, here: http://www.justice.gov.za/juscol/news/201106_intestate-and-testate-succession.pdf  

May 22, 2016

What is marriage annulment?

An annulment is a court order which nullifies a marriage, or declares that no marriage ever existed.
A marriage can end through death of one of the parties, divorce or annulment.
Annulment occurs when a court declares the marriage to be void or voidable. In both cases, the court can declare the marriage as at an end.
When can a marriage be annulled as void?
Technically, because void marriages were never legal to begin with, there is no need for a formal annulment. The parties can simply walk away from the marriage and get on with their lives. It makes more sense, however, to obtain a formal declaration of annulment to avoid any future legal problems.
A court will set aside a marriage as void in any of the following circumstances:
·         The person who solemnised the marriage was not competent to do so (provided that although a marriage solemnised by a person who is not a marriage officer is void, it can be ratified by the Minister of Home Affairs, which will then make it valid);
·         The girl was under the age of 15, or the boy was under the age of 18 and did not obtain prior consent from the Minister of Home Affairs (a marriage contracted without his consent is void but the Minister may ratify the marriage, which will then be valid);
·         The parties to the marriage were too closely related (related within prohibited degrees);
·         One party is already married;
·         One party was not of sound mind when they got married.
When can a marriage be annulled as voidable?
A court will set aside a marriage as voidable in any of the following circumstances:
·         The wife was pregnant with the child of another man at the time of marriage;
·         Impotence or sterility.
·         Duress or intimidation (where one party forces the other into the marriage);
·         Fraud or misrepresentation (where one party claims to be something or someone that he or she is not).
How is annulment different to divorce?
Divorce is a legal way of ending a marriage when it has broken down irretrievably. An annulment is a legal way of ending the marriage that was void or voidable.
In our law, there is a direct correlation between the transfer of the lobolo, and the fertility of the wife. From a customary legal point of view, the marriage is only complete if, on the one hand, the woman has borne children, and, on the other, when the commitment to transfer the lobolo (e.g. the transfer of lobola cattle) has been fully satisfied.
If either requirement is not met, the marriage may be regarded as incomplete, and this could bring about the annulment of the marriage.
Children’s Act
In terms of section 39 of the Children’s Act, the rights of a child conceived or born of a voidable marriage shall not be affected by the annulment of that marriage and no voidable marriage may be annulled until the relevant court has inquired into and considered the safeguarding of the rights and interests of a child of that marriage.
A child conceived or born from a voidable marriage which is annulled is treated like a child whose parents' valid marriage is terminated by divorce.