June 2016 - Ivan Zartz Attorneys

27 Jun

Overstepping Family Law Rules

Family Law cases are largely dependent on outcomes determined in Family Court’s proceedings. However, parents sometimes overstep predetermined grounds and rules regarding cases in order to achieve their own desired outcome. Doing this can be incriminating, and will result in the parent losing their case or worse.

Bugging Case

A recent court case in Family Court found a father guilty of bugging his daughter’s school uniform in order to find out important information discussed between the daughter, the mother as well as social workers. The cheap recording device was sewn into the girl’s clothing and recordings were saved throughout numerous days in which meetings would take place.

Additionally, the father and his new partner would place recording devices in rooms where the daughter and social workers would have meetings. This was all done in order for the father to find out crucial information regarding the daughter’s expected change of residence and guardianship from the father to the mother.

Overstepping The Law

This is a classic case of the father breaching the daughter’s privacy, and is not only illegal but the finding of which certainly contributed to the father losing his battle in court. The judge believed that by bugging his daughter’s clothing, the father has significantly damaged his relationship with his child, and such a situation warranted a change of guardianship.

In any event, such a breach of law and an invasion of privacy may mean an outcome worse than a change in the outcome of the court case. It may also mean that the person responsible for any legal breach will have to pay fines, damages and can even face imprisonment.

It is important that with all cases regarding Family Law that parties take into consideration the advice given to them by legal professionals. A Family Law attorney will be able to provide you with all the necessary information concerning one’s actions and responsibilities from the onset of all legal cases.

If you require Family Law attorney in South Africa, make sure that you contact Ivan Zartz Attorneys as soon as possible.

19 Jun

What Happens When A Parent Avoids Child Maintenance?

When parents separate, or were separated before the birth of the child/children, then both parents have to perform the function of providing child care. Sole ‘custody’ (now an informal term) of children often means that a single parent is responsible for raising the child. Most of the time the other parent, more often than not the father, has the right to visitation or contact, and assists the other parent in the upbringing of the child by providing financial assistance through compulsory maintenance, mandated by the state. But what happens when a parent decides not to pay maintenance?

The Responsibility of the Carer

When a parent has not paid his/her required child maintenance it is the responsibility of the carer to approach the Maintenance Court as a complainant. Without doing so, the state will have no proof that the parent has not paid child maintenance. If the parent responsible for the child maintenance payments (respondent) does not pay maintenance for more than a period of 10 days, then the complainant can approach the Maintenance Court. There are three orders that the complainant may apply for at the maintenance court in order to receive monies due. Without repayment after this period, the respondent is liable to pay fines and can even be jailed for a period up to 1 year.

The three orders that may be applied for are:

A Warrant of Execution whereby the Sheriff of the Court may approach the respondent’s physical address and can claim any moveable and immovable property until such a time that the unpaid child maintenance is repaid.
A Garnishee Order may also be made whereby any monetary compensation received by the respondent is immediately transferred to the account of the child carer until the child maintenance order is satisfied.
A Debt Attachment means that debt owed to the respondent will be interrupted before being received and transferred to the complainant until child maintenance is satisfied.

In every instance, only a certain amount is payable for a certain period of time, and each order can be challenged by the respondent with sufficient evidence supporting his/her case.

For more information regarding maintenance repayments, make sure you contact one of South Africa’s most experienced child custody lawyers, Ivan Zartz Attorneys.

15 Jun

Debt Collection And Condictio Indebiti

What happens when an individual or organisation makes a payment to another party by a mistake and expects repayment for services not rendered. This classic case of debt collection is termed Condicto Indebiti in the legal world, and certain requirements have to be met in order for a plaintiff to hold a defendant responsible for paying back money for services not rendered.

Mistaken Payment

When a payment is made by mistake to an organisation or individual the process that happens most often is a form of unofficial mediation whereby the party who has made the mistaken payment approaches the payee. Often, and when providing evidence of a mistake, the payee will likely return the money to the benefactor. However, what happens when the payee refuses to make a repayment?

Condictio Indebiti

A case of condictio indebiti debt collection is different from a normal case of debt collection. Debt collection follows when somebody has rendered a product or service and has not received payment. With the case of a mistaken payment, the debt collection process (in the event that the defendant in a litigated case is not willing to repay) needs to be carried out when certain requirements are met. These requirements are:

That the defendant has received a particular amount of money
That the plaintiff has paid that particular amount of money
That there is an adverse effect of causality between the two parties (the defendant benefits where the plaintiff suffers)
The payment has to have been made by a mistake or without an actual legal reason for payment
And lastly, that the error on the part of the plaintiff was excusable

When all of the above conditions have been met, and there is no way in which common law for particular cases has been challenged, the payee (defendant) is responsible for paying back monies owed.

Although not a case of debt collection, the similarities between cases of debt collection and condictio indebiti often mean that debt collection attorneys are more than experienced enough to assist clients in this regard.

To find out more about our strict measures of debt collection contact Ivan Zartz Attorneys today.

13 Jun

Marriage and Property Law

Did you know that a property contract agreement pertaining to property law can be overruled by agreements made in the marriage contract?This can have far-reaching consequences if couples are unaware of the outcome regarding the sale of a property when married or after a divorce. It is important that couples realise, before making their vows, that doing so can change the outcome of a property agreement.

In Community of Property

In Community of Property is an easy law to understand. It basically means that any assets that either one of the spouses owns during or before the marriage vows are made belongs to both spouses equally. This means that in the event of divorce the sum of both assets will be divided as equally as possible, while during the event of death, the living spouse will have ownership of all the marriage assets. This agreement is the most repudiating with regards to property law and the individual ownership before marriage.

Anti-nuptial Contracts and Property

An anti-nuptial contract is very different from the Community of Property rule. In the case of anti-nuptial agreements, spouses can agree to accrual or not. Accrual means that any assets made during the marriage period will be shared equally in the event of divorce. However, any property or assets owned by any one of the spouses before marriage strictly stays in that individual’s name unless agreed on the anti-nuptial contract otherwise.

Without accrual means that all property and assets, whether accumulated during the time of marriage or not, is owned by the individual in whose name the assets are in. Without accrual can be problematic in the event that the other spouse helps to pay for a particular asset, and how a particular asset is shared needs to be expressed within the contract.

With regards to property, couples must think long and hard as to their choice in marital contract. As with any agreement, we cannot predict the future, and agreements need to be made now to safeguard individuals in the case of divorce and/or death. A hasty decision may supercede the common property law in any event.

For more information regarding property law, please contact Ivan Zartz Attorneys as soon as possible. Furthermore, take a look at our blog page to peruse our latest articles.

08 Jun

What Is A Sale In Execution?

An individual’s credit history sometimes catches up with them. The occurrence is no more prolific than in the property market, and many a homeowner in South Africa has had their home taken away from them because they have failed to pay their home loan or bond. When this occurs, the practice is called ‘a sale in execution’.

Sale In Execution Of An Unpaid Home Loan

When the new property owner has not paid the bond or home loan, efforts will be made to enter some sort of financial agreement with the homeowner, often in the presence of legal representatives. After multiple instances of notification, it falls on the bank to sell the house on the market through the sheriff of the court. This can only be done through a court order, a cumulation of decisions made in court, and justified by the financial capacity (or lack thereof) of the individual.

The sale of the house is usually done by an auctioneer, and the auction itself would have been advertised in both the Government Gazette as well as print media. The price at which the house is sold by the auctioneer cannot be denied by the bank, as the property is strictly not their own. Often houses are sold well below their market value due to the nature of the sale.

Legal Opposition To Sale In Execution

There have been recent cases whereby individuals and organisations have challenged the sale in execution. A recent case involved the Lawyers for Human Rights (LHR) where they challenged the courts, believing that the sale of a particular individual’s home far below the market value, as an infringement on the individual’s rights. Some properties are sold for less than the amount owed by the homeowner towards the bank loan or bond. This often means they have to pay additional fees or risk being ‘blacklisted’.

If you require more information on issues regarding property law, sectional title law or debt collection, make sure you contact Ivan Zartz Attorneys today.