The Online Family Law Course - May 2020

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Online Family Law Course

Helping communities is an integral part of our work. At Maurice Phillips Wisenberg, we leverage our talent and resources to make a positive and lasting impact on many of today's social and economic challenges, for that reason we launched the online family course. - Bertus Preller Family Law Attorney.

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About the Online Family Law Course

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Our online Family Law course gives you the opportunity to study the key issues of Family Law, greatly increasing your understanding and knowledge of the Family Law and related procedures and practices. 

This highly practical course equips you with a broad knowledge of South African Family Law and gives you a foundation on which to build your knowledge whether you are a law student, paralegal, candidate attorney, legal secretary or simply someone who wish to know more about Family Law, Divorce and Separation. 

REGISTER HERE

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Your Tutors

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BERTUS pRELLER

CATHERINE COX

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Modules Covered

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1.  Engagement

• Requirements for an engagement
• Capacity
• Consent
• Mistake
• Misrepresentation
• Duress and undue influence
• Lawfulness
• Termination
• Breach of promise
• Claims for prospective losses
• Claims for actual losses
• Return of engagement gifts

2.  Formalities for marriages and civil unions in South Africa

• The Marriage Act 25 of 1961
• The Recognition of Customary Marriages Act 120 of 1998
• The Civil Union Act 17 of 2006
• The Marriage Act 25 of 1961
• Requirements for a valid marriage
• Outright inability to marry
• Where a person is already married
• Where a person is mentally incapacitated
• Where a person is below the minimum age set for marriage
• Where a person falls within the prohibited degrees of relationship
• Formalities for a valid marriage
• Preparing to get married
• Confirm your marital status
• Required documentation 
• Marriage officers
• Formalities preceding the wedding ceremony
• Formalities during the marriage ceremony
• Registration of the marriage
• Recognition of foreign marriages
• The Recognition of Customary Marriages Act 120 of 1998
• What is a customary marriage?
• Are customary marriages legally recognised?
• What about marriages that took place before the law was passed?
• Requirements for customary marriages
• Registering a customary marriage
• Registering more than one customary marriage
• The Civil Unions Act 17 of 2006
• Who may conduct a civil union?
• Requirements for registering a civil union
• Documents required for concluding a civil union

3.  Concepts in the new Children’s Act

• The ‘best interests of the child’ principle
• Parental rights and responsibilities
• Guardianship
• Sole guardians
• Co-guardians
• Care
• Divorce and care
• Contact
• Reasonable contact
• Defined contact
• Supervised contact
• Phased-in contact
• Indirect contact
• Shared contact/parenting
• Maintenance

4.  The acquisition of parental responsibilities and rights

• Types of acquisition of parental responsibilities and rights 
• Biological mothers
• Married biological fathers 
• Unmarried biological fathers
• Artificial insemination
• Guardians and caregivers appointed in a will
• Guardians and caregivers appointed by court order
• Court orders that terminate, extend, suspend or restrict parental responsibilities and rights

5.  Sharing parental responsibilities and rights

• Parenting plans
• Disagreements regarding parental rights
• What is a parenting plan?
• Living arrangements 
• Contact between the child and the parent of alternate residence
• Other contact
• School information
• Joint decisions 
• Maintenance
• Contact between the child and others
• Communication
• Transportation
• New partners
• Conflict and dispute resolution mechanisms
• Making decisions
• Decisions about schooling
• Decisions about religion
• Parental responsibilities and rights agreements
• Refusal to allow the other parent to exercise parental responsibilities and rights
• The family advocate, Purpose, Powers, Nature of work, Steps
• Important issues to remember for successful parenting

6.  Relocation and child abduction

• Relocation
• Factors a court will rely on in cases of relocation
• Examples of relocation court cases
• Child abduction
• The Hague Convention on Civil Aspects of International Child Abduction
• Wrongful removal or retention of a child
• The role of the Central Authority
• Habitual residence
• Procedures
• Outgoing
• Incoming
• Opposing an application for return
• Care and contact rulings made in South African civil courts
• Recovering a child from a non-contracting state

7.  Unmarried parties and children

• Parental responsibilities and rights
• Biological parents
• Biological mothers 
• Married biological fathers
• Unmarried biological fathers
• Disputes
• Other interested persons
• Same-sex couples
• Assignment of contact and care to an interested person by order of the court
• Assignment of guardianship by order of the court
• Termination, extension, suspension or restriction of parental responsibilities and rights
• Refusal of access or refusal to exercise parental responsibilities and rights

8.  Important aspects of divorce

• The game of divorce
• The players
• The venue
• Why divorces should not go to trial
• The adversarial system
• Costs 

9.  Matrimonial property regimes

• Marriages in community of property
• Assets
• Liabilities
• Insolvency
• Managing the joint estate
• Informal consent
• Written consent
• Written consent with two witnesses
• Prior written consent with two witnesses
• Advantages of marriage in community of property
• Disadvantages of marriage in community of property
• Suing for damages
• The consequences of divorce when married in community of property
• Marriages out of community of property
• Antenuptial contracts
• Registration
• Marriages out of community of property without accrual
• The consequences of divorce when married out of community of property before 1 November 1984 
• The consequences of divorce when married out of community of property without accrual after 1 November 1984
• Insolvency
• Advantages of marriage out of community of property without accrual
• Disadvantages of marriage out of community of property without accrual
• Marriages out of community of property with accrual
• The consequences of divorce when married out of community of property with accrual
• Commencement values and accruals
• Forfeiture
• Advantages of marriage out of community of property with accrual
• Disadvantages of marriage out of community of property with accrual
• Changing matrimonial property regimes
• Division of assets at divorce of foreign marriages

10.  Divorce and pension funds

• The clean break principle
• Pension interest
• How is pension interest calculated?
• Divorce settlement agreements
• Citing the fund in the divorce settlement agreement
• Taxation of pension interest allocations
• How much tax must be deducted?
• Accrued pension benefits
• Example of a pension fund clause in a divorce settlement agreement
• Attaching benefits of a pension fund for arrear maintenance
• Lodging a claim for maintenance
• Frequently asked questions
• Am I entitled to a portion of my spouse’s interest in his/her pension fund on divorce?
• Am I entitled to a portion of my spouse’s pension interest after he/she has left the fund?
• Can a pension fund reject my claim for payment of a portion of my spouse’s interest?
• Am I entitled to interest if the fund pays out late?
• What can I do if my spouse is reluctant to cooperate in the payout of his/her pension benefit?
• What can I do if the fund reviews my divorce order and indicates that it is not binding on the fund?
• If I am living with my partner and we are not married, will I have a claim against his/her pension when we separate?
• Is a retirement fund obliged to pay the former spouse of a member any share of the fund if the member leaves the fund before their divorce has been finalised?

11.  The divorce process

• The consequences of divorce
• Division of property at divorce
• Grounds for divorce in South Africa
• Irretrievable breakdown
• Mental illness or continuous unconsciousness 
• Mental illness
• Continuous unconsciousness
• Types of divorces
• Uncontested divorces
• Default divorces
• Do-it-yourself divorces
• Mediation
• Collaborative divorces
• Round-table meetings
• Contested or opposed divorces
• Preparing for divorce
• Substituted service
• Edictal citation
• Who should leave
• Financial issues
• Hiding assets
• Trusts and divorce
• Divorce financial information checklist
• Procedure for contested divorces
• Pleadings
• Summons
• Plea
• Counterclaim
• Plea to counterclaim and further pleadings
• Application for and set down of trial date
• Further discovery and particulars
• Pre-trial conference
• Trial
• Judgment
• Costs
• Damages
• Claims against a third party in cases of adultery
• Rescission and variation of orders
• Appeal

12.   Maintenance

• The principles of maintenance in respect of children
• Spousal maintenance
• The duty of support
• Procedure for obtaining spousal maintenance
• Divorce settlement agreement
• Court application
• Spousal maintenance is not a right
• Types of maintenance
• Rehabilitative maintenance
• Permanent maintenance
• Token maintenance
• Maintenance and the court
• Factors that determine maintenance 
• The conduct of each party insofar as it relates to the breakdown of the marriage
• Standard of living of the parties prior to the divorce
• The earning capacities of the parties
• Duration of the marriage
• Suspension or variation of maintenance orders
• Maintenance claims pending divorce
• Who can claim?
• Procedure to obtain interim relief
• Costs of an interim relief order
• Violation of an interim relief order
• Variation of an interim relief order
• Interim relief claims where a wife lives with another man
• Can I be evicted from the matrimonial home during the divorce proceedings
• Child maintenance
• Monthly cash payments
• Medical expenses
• Educational costs
• Tertiary educational costs
• Frequently asked questions
• What will a court take into account when making a maintenance order?
• Which parent must support the child?
• Can I withhold maintenance payments if I am denied contact with my child
• How long must a parent continue to pay maintenance for his/her child?
• Is there an obligation on grandparents to support a child?
• Is it the duty of siblings to support a child?
• Is it the duty of stepparents to support a child?
• Will a child have a maintenance claim when a parent passes away?
• Paternity disputes
• Offences and penalties for not paying maintenance
• Fine
• Imprisonment
• Suspended sentence
• Correctional supervision
• Claiming maintenance
• How to apply for a maintenance order in the maintenance
• Step 1: Gather information
• Step 2: The application
• Step 3: The investigation
• Step 4: The informal enquiry
• Step 5: The formal enquiry
• Who must be present at the maintenance enquiry?
• What if I cannot afford the transport costs to get to court? 
• What procedure must be followed when submitting evidence?
• What happens if the respondent does not appear at the enquiry?
• The maintenance order
• Can parties agree to a maintenance order?
• Can the maintenance amount be reduced?
• What if the respondent is unemployed?
• Can I appeal against a maintenance order?
• What happens if the respondent does not pay? 

13.  Domestic violence and abuse

• Domestic Violence Act 116 of 1998
• Types of domestic violence
• Physical abuse
• Sexual abuse
• Emotional, verbal and psychological abuse
• Economic abuse 
• Intimidation
• Harassment
• Stalking
• Damage to property
• Entry into property
• Any other controlling or abusive behaviour
• Signs of an abusive relationship
• The protection order
• Who qualifies for protection under the Act?
• Interim protection order
• Steps to obtaining a protection order
• Step 1: Gather information and documentation
• Step 2: Seek assistance
• Step 3: Apply for the interim protection order
• Step 4: Serve the interim protection order
• Step 5: Make the order final
• Breaching a protection order
• Frequently asked questions regarding protection orders
• How long is a protection order valid for?
• May a protection order be varied, withdrawn or set aside?
• Once withdrawn, can I re-apply?
• Can the respondent have the protection order set aside?
• What happens if the parties reconcile?
• Can a protection order be used to prohibit contact with children?
• What if there is a change in the way the complainant is being abused?
• Can a court award legal costs in a domestic violence application against a party?
• Can a respondent claim damages in respect of malicious institution of proceedings against him/her in terms of the Act?

• Domestic violence and the police
• Failure to assist
• Claiming damages from the police

16.   Cohabitation

• Cohabitation and legislation
• The draft Domestic Partnerships Bill, 2008
• Cohabitation agreements
• When the relationship ends
• Claiming back
• Property
• Owned property
• Leased property

17.  Same-sex relationships

• Legal aspects pertaining to same-sex relationships
• Same-sex life partnerships
• Legal consequences 
• Irrespective of whether the partners have assumed a responsibility to maintain each other
• When the partners have assumed a responsibility to maintain each other
• Terminating a same-sex life partnership
• Termination by death
• Termination by separation