Monthly Archives: January 2018

Divorced stay at home parent

B2Are you recently divorced and a stay at home parent? Know your rights and get what you deserve!

In South African law, section 7(2) of the Divorce Act deals with the payment of maintenance in situations where no settlement agreement has been entered into between the parties, and it’s up to the courts to deal with the matter of maintenance.

What happens if I get divorced?

Rehabilitative maintenance refers to divorce situations where a maintenance order is given for a certain time after the divorce is finalised. The court makes a decision based on certain factors, including; the divorcing couple’s current and potential future financial means, their ages, the length of the marriage, their standard of living before the divorce, and any behaviour that may have contributed to the divorce.

In South Africa, no maintenance will be awarded to someone who can support themselves, or has the ability to support themselves. If the stay at home parent has not abandoned or downscaled his/her career to stay at home to take care of the children, no maintenance will be awarded.

How can the law protect me?

An award for rehabilitative maintenance is usually given when the court finds that a marriage has significantly affected the ability of one person to support themselves. When maintenance is awarded, the court takes into consideration the amount of time it will take for the stay at home parent to upskill him/herself to re-enter the job market. In many cases, it isn’t possible for the stay at home parent to re-enter the job market, and they may find themselves without an income once the period of rehabilitative maintenance is over.

Courts need to look at how employable the stay at home parent is when he/she seeks a maintenance award. If employability isn’t possible, the stay at home parent should be granted maintenance until death or remarriage.

The ages of the couple’s children will also be taken into consideration, as well as which parent will be the primary resident parent. Rehabilitative maintenance could be awarded to the stay at home parent to take care of the children until they can support themselves.

References:

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).

How to evict an illegal tenant

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Landlords who have tenants that they believe are occupying their premises illegally may not forcefully remove such tenants. The Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (No. 19 of 1998) provides for the prohibition of unlawful eviction and also provides proper procedures for the eviction of unlawful occupiers.

According to the Act:

  • no one may be deprived of property except in terms of law of general application, and no law may permit arbitrary deprivation of property;
  • no one may be evicted from their home, or have their home demolished without an order of court made after considering all the relevant circumstances;
  • it is desirable that the law should regulate the eviction of unlawful occupiers from land in a fair manner, while recognising the right of land owners to apply to a court for an eviction order in appropriate circumstances;
  • special consideration should be given to the rights of the elderly, children, disabled persons and particularly households headed by women, and that it should be recognised that the needs of those groups should be considered;

Procedure regarding evictions in terms of the PIE Act:

  1. According to the Consumer Protection Act (CPA), to cancel a fixed-term lease you must give the tenant at least 20 business days’ notice to rectify a material breach of the lease, failing which the lease will be cancelled.
  2. After 21 days, you can send the tenant a letter to cancel the lease. The letter should state that the tenant is now deemed to be occupying the property unlawfully and that he or she must vacate the premises by a specific date.
  3. If the tenant/occupier has not left the premises by the date mentioned in the letter of cancellation, then your lawyer can lodge an eviction application, which includes seeking the court’s permission to serve a notice of motion on the occupier.

References:

  • Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (No. 19 of 1998), South Africa
  • “How to evict a tenant (lawfully)”, Mark Bechard, Personal Finance, IOL. https://www.iol.co.za/personal-finance/how-to-evict-a-tenant-lawfully-2059984

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)