You are paying for the services of the attorney, so don’t feel shy to ask about anything you feel unsure of or would like to know about the case. If you don’t ask the questions that pop into your head, you can leave the interview without knowing that the lawyer is a good divorce attorney and can help you with your case. If you are comparing divorce lawyers, ask each the same questions so that you can compare their answers and decide which is the best for your needs and your budget. Remember that you can’t always rely on your memory (especially during stressful times such as divorce) so it is best to record or write the lawyer’s answers down.

Here is a list of a possible 10 questions to ask your divorce attorney:

• What are the steps involved in process of divorce?

The lawyer should explain the process of divorce clearly to you. Ask them to talk you through filing a divorce petition, the negotiation of the temporary orders and the actual trial process.

• What is your experience in family law?

The attorney you consult will have a law degree, but may not only practice family law. It is better to hire a lawyer who specializes in family law. Feel free to ask about cases similar to yours so that you can have an idea of what kind of outcome you can expect.

• Do you have experience in court?

Don’t feel shy to ask about the lawyer’s experience in a court of law. You can ask about the outcome of cases similar to your own.

• How do you think a judge would rule on my case?

A lawyer cannot guarantee the outcome and specific results of a case, but they can make predictions based on previous cases they have worked on. If the lawyer understands the facts that will make the ruling more favorable they will be able to strategize the case in such a way.

• What are your fees?

Ask your lawyer about the hourly rate and how often you would be expected to pay bills. Also ask what will be charged for any time you spend with other staff in the office and paralegals, as well as enquire about payment plans.

• How will we keep in touch?

Ask your attorney how they prefer to communicate; whether by phone or email, and how tech savvy they are when it comes to scanning and sending documents via PDF. You are also entitled to ask how long you can expect to wait for the lawyer to return your calls.

• How much will the divorce cost?

Although it may be difficult for the lawyer to estimate this on the first meeting, but you can ask them to give you an outline of what other cost factors you may incur along the process.

• How long will it take for the divorce to finalise?

This depends on whether you have a trial, settle quickly, or settle after negotiations. Ask for an outline of how long each could take.

• What other resources are available to clients?

Other than their immediate attorney services, good lawyers should also provide resources that can make the divorce process easier and less painful. Some attorneys offer referrals to other professional services, reading materials and recommended therapists or counselors. The character of your lawyer should also be patient and understanding.

• Would you recommend mediation?

The lawyer should know whether or not mediation would be appropriate for the case. A good lawyer often uses private mediation or other tools for dispute resolution.

10 Questions to ask your Divorce Attorney is an original post from: Lawyer South Africa

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1. Legal Questions and Advice on South African Law

Anyone South African can apply to have their name changed at the Department of Home Affairs. The Identification Act, 1997 (Act No. 68 of 1997) along with the Births and Deaths Registration Act, 1992 (Act No. 51 of 1992) allow for the amendment or rectification of personal information.

This means that legal name changes can be made by individuals listed in the National Population Register of South Africa (NPR). The NPR holds the personal information of South African permanent residence holders and South African citizens, such as information regarding marriages, births, and deaths.

There are a number of amendments provided for by the Birth and Death Registration Act allowing for legal name changes:

• The re- registration of a child born out of wedlock

If a child is born out of wedlock and given the surname of one parent, the child may change his or her surname to the relevant surname if the parents marry after the registration of the birth. The child can be re-registered as a child born within wedlock when the parents marry if both parents sign a   BI-59 application form and provide proof of the marriage.  This service is provided free of charge.

If a child is born out of wedlock, a biological father may wish to insert his particulars in the birth registration of his child. This requires the completion of a BI-1682 application form sworn to by both the father and the mother. This application costs R48.00.

• Insertion of a surname or forename in a birth registration

If a person is registered without a surname or forename, a name can be inserted free of charge upon completion of a BI-795 form.

• Change of forename(s)

To change a forename, a BI-85 application form must be submitted by an applicant. For a major, this will cost R80.00; and for a person who is not declared a major (in terms of the Age of Majority Act) or a person who has not entered into a legal marriage the cost is R50.00.

• Change of a minor’s surname

The surname of a minor can be changed in a number of different scenarios:

• If the child is born out of wedlock and the mother marries a person (not the child’s natural father) and wished to change her child’s surname to that of her husband.
• If after divorce from or death of her husband (the father of the child) the mother wishes to change the child’s surname to her maiden surname or the surname of her new husband.
• If the child was born out of wedlock and was registered under the father’s name, the mother may change to child’s surname to her won surname.
• The guardian of a minor may wish to change to child’s surname to his or her surname.
• The law also states that other instances may allow for the surname change of a child if sufficient reason exists.

Application cost R50.00 and will be considered upon completion of a BI-193 application form.

• Change of surname of majors

No application is necessary for a woman to assume her husband’s name; join her surname to a double barrel surname, or revert to her maiden surname but the Department of Home Affairs should be informed of the change.

No major may assume a new surname unless the change is approved by the Home Affairs Director-General. Applications must be made to Home Affairs with a completed BI-196 form with sufficient reason in writing. This costs R260.00.

• Change of gender

A person who has undergone gender reassignment may apply for a change in gender description on a birth register. Applications cost R48.00 and must be accompanied by a completed BI-526 application form with prescribed reports and must be lodged at a Home Affairs office.

Legal Name Changes is an original post from: Lawyer South Africa

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The act of surrogacy dated back to the days of the Bible, where women agreed to conceive a baby for an unfertile woman. The child would then be handed over from the surrogate mother to the adoptive mother once it was born. Today, there are official and formal processes safeguarding both surrogate mothers and commissioning parents in South Africa.

South Africa has strict laws regarding surrogacy, ensuring that the process of surrogacy is regulated and monitored. The Children’s Act 38 of 2005 came into effect on 1 April 2010, outlining new laws (the first!) regarding surrogate mothers and protecting the rights of the unborn child. The legislation lays out the responsibilities and requirements on both the surrogate mother and the intended parents.

The costs of surrogacy include legalities, fertility treatment clinic costs, court order preparation, as well as the costs of reimbursing the surrogate mother.

A summary of surrogacy legislation

Laws pertaining to the surrogate mother:

• The surrogate mother must reside in South Africa
• The surrogate mother must undergo both a psychological and medical assessment to see if she is a suitable candidate.
• The surrogate mother must have had at least one pregnancy that was successful and must have one child of her own.
• Commercial surrogacy is not permitted so the surrogate mother must be prepared to be a surrogate mother for altruistic reasons.

Laws pertaining to the intended parents

• Both intended parents must be South African residents.
• The intended parents will need to provide medical proof that they need the services of a surrogate mother.
• Both intended parents must undergo psychological assessments to check their emotional attitudes towards the surrogacy program.
• Either one or both of the intended parents must supply either eggs or sperm for conception.
• If both of the intended parents are to be male, they must show that there will be some kind of female influence on the child’s life.
• The intended parents cannot be discriminated against based on relationship status, race, or sexual preference.
• The intended parents are not permitted to advertise for the services of a surrogate mother.

Laws pertaining to the surrogacy agreement

• Some kind of surrogacy agreement must be drawn up.
• The agreement must be signed by the surrogate mother and her partner or husband as well as both intended parents.
• The surrogacy agreement must be presented to the High Court (with relevant supporting documentation) by a specially commissioned surrogacy attorney. The High Court may then grant permission for the surrogacy to proceed.
• The granting of the court order does not necessarily mean that the child must be adopted.
• Any agency dealing with matching intended parents and surrogate mothers may not accept payment for these services.

For more information about surrogacy in South Africa, visit the Surrogacy Advisory Group‘s website. The Surrogacy Advisory Group is the first surrogacy support programme in South Africa, operating form a non-profit basis. The group aims to give advice and support to both intended parents and surrogate mothers.

Another non-profit organization offering similar support is Gift Ov Life. This website outlines to surrogacy options for people intending to use a surrogate mother and allows potential surrogate mothers to contact the organization to offer their services to commissioning parents. The agency will also help to refer people to the relevant specialists that carry out the psychological, legal and medical requirements outlines in South Africa legislation.

Surrogate Mothers around South Africa is an original post from: Lawyer South Africa

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What is legal aid?

Legal aid is when people who cannot afford legal representation are provided with free legal assistance. Legal aid is an important way for a country to ensure equality before the law, the right to a fair trial, and the right to counsel. In South Africa, legal aid was established by the Legal Aid Acts (Act 20 and Act 22 of 1969). The Constitutions states that every citizen should have access to justice, so legal aid acts as a means by which indigent individuals can be represented at the expense of the State.

What issues can legal aid be applied to?

• You can get advice on any service at the following courts:
• Maintenance
• Family
• Divorce
• Children and child justice
• Domestic
• Sexual offences
• Community
• Equality

The good

• Legal aid is a way of protecting the rights enshrined in the constitution, giving the poor professional legal services at no cost.
• Because legal aid is free, it is accessible to those who would otherwise not be able to afford legal representation.
• Legal Aid South Africa aims to instil empowerment, accountability and strived to embody a caring passion for justice and integrity.
• Legal aid provides for the rights of children.
• Legal aid can be applied to a number of legal advice issues and can assist with the proceedings in most courts.
• If you do not qualify for legal aid, the association will be able to assist you in finding a relevant course of action.
• Legal aid is free.

The bad

• To qualify for legal aid you need to earn less than R5000 per month. This means that people who are still within a lower income bracket (but earn more than R5000) may battle to afford legal representation.
• Due to high volumes of work, legal aid clinics may take longer to process representation needs.
• The staff at legal aid clinics may not have the same expertise or experience as paid lawyers and attorney. Often, legal aid clinic staff is made up of university students who are studying for their law degrees. This also means that the time they have available is limited as they also need to dedicate themselves to their studies.

So, SA Legal Aid – good or bad idea? Essentially, legal aid appears to be a good idea, helping those who are unable to afford private legal representation. However, legal aid does have its limitations and may not always be as good in practice as it looks on paper. The staff may be inexperienced or the aid applications may take some time to process.

For many people in South Africa, the Legal Aid Board and legal aid clinics are their only port of call when it comes to legal matters, so despite any limitations, the existence of this kind of public facility is ultimately a good idea, helping the constitution to be realised and adhered to.

If an attorney is out of your reach and you need advice in family, criminal or civil legal matters, you can contact the Legal Aid Board. To contact Legal Aid South Africa, the organisation can be reached toll free on 0800 110 110, or you can email communications2@legal-aid.co.za.

You can also visit the Justice Centre nearest to you, a community legal aid clinic, or a legal aid clinic at a university close to you for help with legal matters.

SA Legal Aid – Good or Bad Idea? is an original post from: Lawyer South Africa

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What is an uncontested divorce?

Basically, it is a divorce that is settled before you even step foot in the courtroom. All the matters (such as division of property, child custody, and division of assets) are agreed on before any court proceedings can take place. A contested divorce, on the other hand, is when one or both of the parties disagree over the assets or over child custody.

This can actually reduce the amount of assets there are to divide, as the parities will have to cough up cash for lawyer fees; the longer the negotiations go on for, the more expensive the proceedings become. This means that it is far more favourable to sort out divorce issues before they go to trial in an uncontested divorce.

What matters need to be considered in an uncontested divorce?

To avoid the hassle and heartache (not to mention expense) of a contested divorce, there are a number of issues that need settling as part of the divorce procedure. Each couple has a unique situation with different assets to consider, but some of the most important considerations include:

• Child custody: Who will be the main guardian of the child or children, and how will you designate where and how the children will spend their time and other visitation rights issues? Additionally, who will be paying child support and maintenance and how much will these payments be? You may want to include a visitation schedule to finalise the visitation terms.

• Spousal support: Will one of the spouses be entitled to some kind of maintenance pay? If so, how much and how often?

• Debt payments: This is one of the most important issues to agree upon, as you must decide which spouse will be responsible for paying for which debts. If these debts can’t be paid off immediately, it is best that they are transferred to the name of the relevant spouse. If your name is still on account, it means that the creditor can still hold you responsible for the debt.

• Property and asset division: How will you share expensive items such as your home, cars, furniture, and any other assets you have accumulated?

• Retirement accounts: pensions, social security payments and retirement accounts may be of significant value and depending on how long you were married, you may be entitled to a portion of your spouse’s pension and similar benefits.

• Medical Aid: If your medical aid or health insurance is in your spouse’s name you will need to find out from the company what will happen when you get divorced. You should also enquire about whether the cover of your dependants will be affected in any way. If you are under your spouse’s medical aid scheme, you will usually be forced to get another insurance plan for yourself.

Once you have agreed on a divorce settlement, you can approach the court with this arrangement already in place. Because the judge does not need to litigate the issues, a significant amount of time and money is saved on the divorce proceedings. The agreement needs to be written into a contract that contains all the divorce terms, known as a marital settlement agreement.

This document in incorporated into the final decree of divorce and become obligations that can be legally enforced. The court will review the marriage settlement agreement and confirm with both parties that they understand all its contents. They may ask a few questions before being satisfied the agreement is both voluntary and fair.

What documents will I need to provide in court?

Although each court may have different policies depending on location, items you will usually have to bring with you are:

• The marital settlement agreement (bring several copies).
• A copy of your child support order and a copy of your spousal support order if you have one.
• Photo identification of both parties.
• A copy of other relevant document, such as quit-claim deed to property.

Help with Settling an Uncontested Divorce is an original post from: Lawyer South Africa

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Many people do not fight for their homes, even if they have paid off more than half of their home loan, however there are those who are willing to fight for their homes and therefore they require a good defence attorney to help them through the ordeal. There are however numerous important things that you will need to be conscious of. Firstly, ensure that they lawyer that you hire has a good reputation. It has been found that a number of attorneys have been committing fraud by means of “double dipping”. This means that they are actually employed by the banks that want to foreclose your home and therefore there is a serious conflict of interest.

If you are in the unfortunate situation and you find yourself asking “when do you need a foreclosure attorney?” you need to understand that foreclosure defence is not a situation that must be taken lightly. The difference between getting a good lawyer and a bad one can mean the difference between keeping and losing your home. It is therefore imperative that you put in some hard work yourself in not only finding a good lawyer, but understanding the laws and making yourself as knowledgeable about the entire process.

This will also help you with your screening of lawyers as you will hopefully be able to suss out the fraudsters and the ill informed ones. It is also a good idea when looking for a lawyer to request past instances and previous client references before you decide on one. You can also do a private background check on the lawyer to make sure that they do not actually work for the banks.

There are also a number of other scams that some foreclosure attorneys have become involved in. There have been a number of cases where fraudsters offer to help you and then ask for a large fee upfront. Once they have your money they become untraceable and this will leave you in a worse off situation than you were previously. One way to ensure that you are dealing with a legitimate organisation is to see if they are government affiliated or not. If they are not affiliated to the government then it is essential that you check out their credentials and ensure that you are protecting yourself against scams.

You have worked really hard to get your house and make it a home for you and it is essential that you do not give it up without a fight. Another scam that has made the news recently is that people are losing their homes to people who actually have no claim to the loan that you have. What they do is that they claim to own your loan and as a result they claim the right to take back your property. This is why it is essential that you have an attorney that not only knows the laws and is competent, but keeps your best interests at heart. With more and more evidence surfacing of lenders not actually possessing the proper documentation to foreclose your home, it has been essential that you have an attorney that will be able to spot the real documentation from the fake. Do not give up your home without a fight, especially if you do not think that everything that you are hearing is correct.

When do you need a Foreclosure Defence Attorney? is an original post from: Lawyer South Africa

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There are a number of different types of marital contracts that can be entered in to. Firstly, you can get married in community of property which means that should you have to go through a divorce, then the assets of both parties will be split equally between the two, as well as the debts. The only danger with getting married in community of property is that should one of the parties be in severe debt at the time of the dissolution of the marriage, then that parties creditor can sue the other party in order to get back the money that is owed. Should you decide that you want to safe guard your assets then an anti-nuptial contract should be signed by both parties before the marriage and you need to decide if you should get married with ante nuptial accrual system or not.

Should you decide to get married with the application of the accrual system, then you will both have to declare the net commencement value of your assets. Should for example you start out with a net commencement value of nil but at the dissolution of the marriage have assets amounting to R2 million, then your soon to be ex partner will be entitled to half of that – R1 million. It is important to note that you can choose to exclude certain assets from the accrual. For example, should you own a house before you get married, you can leave this out of the accrual so that your ex partner has no claim to it at the time of the divorce.

The other option with ante nuptial contracts is that you get married with the exclusion of the accrual system, then your spouse would not be able to claim any of your assets at the dissolution of the marriage. This also means that should you have joint debt during your marriage, but the debt is in your name, then your ex will not be held liable for any of that debt. It is therefore essential that should you be getting married without the inclusion of the accrual system, that any debt that you have that is shared, is in both of your names so that you do not get left having to pay off all of the debt on your own.

Another important thing to realize is that in order to get an ante nuptial contract, you have to visit a lawyer which can be quite costly. This is one of the main reasons that people get married in community of property. However this could be extremely detrimental should you acquire wealth during the marriage on your own, and then at the dissolution of the marriage, have to share that wealth with your former partner. Today, it is essential that you obtain a ante nuptial contact in order to safe guard yourself in the event that the marriage does not last. The pain of having to get a divorce in the first place is enough, why add to it by losing your assets in the divorce as well.

Should you get Married with Antinuptual Accrual system? is an original post from: Lawyer South Africa

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The rights that women are entitled to should be equal to those of their male counterparts, however due to marriage, many of these laws rights seem to fall by the wayside. For example, some religious marriages are arranged even though this is now illegal in South Africa. In some other instances, some customary marriages oblige a widow to marry another man from the family of her late husband.

Many of these types of marriages are against the will of the women, however, cultural leaders and family members are instructing them that they have to do it even though it is no longer the case. What is more is that polygamy in this country is not allowed however in customary law it’s permitted.

In addition to the above, women that are married under customary law are seen as perpetual minors and have no authority in the family. This is even reinforced in today’s society with the paying of lobola to the family of your bride. This money is paid for your bride to be and therefore she becomes a part of the husband’s property once this transaction has taken place. In addition to this, customary marriages do not permit the widows to claim any inheritance, but rather the deceased’s family get any inheritance that may have been. As you can see from the above, the rights of women in this country are a little shady at most, especially for women that are bound by customary laws. It can therefore be said that the rights of women in this country appear to be open to contradiction.

Family law and violence against women in South Africa is an especially hot topic at the moment with the appointment of Mogeong Mogeong as Chief Justice of South Africa. This is because of seriously questionable judgments that he made before being assigned to the position. In several court cases that he ruled over which involved the prosecution of men for rape or women abuse, he gave lighter sentences then were deserved as he claimed that the women involved were not seriously harmed.

In one case where a woman was dragged behind her boyfriend’s bakkie whilst he drove it, the new Chief Justice claimed that her injuries were not too serious and as a result let the abuser off with a fine. This nomination has caused a major outcry from a number of Women’s rights organisations in the country.

Violence against women in this country is a major issue and more and more organisations are trying to little avail to get harsher punishments against perpetrators and with the new Chief Justice in place, their struggle has become that much harder. This is especially relevant to customary laws which women in certain cultures are bound by.

South Africa is a country that is multicultural and as a result there are many customs that abuse the rights of women. It can therefore be said that the cultures that woman are born in to, affect the extent to which they are allowed their constitutional rights. As a result many cases of women abuse go without punishment or acknowledgement. It is therefore the responsibility of the state to bring about awareness of these rights so that people can stand up for themselves.

Family Law and Violence against Women is an original post from: Lawyer South Africa

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1. If you have children and the custody of the children is under contention then you cannot conduct a DIY divorce as the decision of who will get custody will lie with a judge and therefore you will have to go to court and are not eligible for a DIY divorce.
2. If both parties are not agreed on the terms of the divorce then you cannot apply for this kind of divorce. This is because if there needs to be divide of assets between the two parties and they are not agreed on who should get what, then a judge would also need to decide on this matter.
3. If the person being divorced is no longer in the country, you cannot apply for this kind of divorce and therefore would have to consult an attorney in order to proceed with the divorce.

Should you however comply with the above and you are both in agreement about everything then getting a divorce can be quick and easy. There are numerous websites out there that punt the DIY divorce and offer their services for a small fee. One such website is www.diylaw.co.za where they ask a few questions in order to determine if you are eligible. Should you qualify to conduct a DIY divorce then all you have to do is fill in the forms that can be downloaded from their websites and pay an admin fee and you are a for away.

Although this may seem like quite a callous and cold way to end a marriage, this could be the best thing for you to do. One reason for this is that you do not need spend time with an attorney discussing what went wrong, how you want to split up the assets, and basically just rehashing all of the emotional trauma that the divorce is causing.

The majority of the population do not fully understand the law and their rights. As a result, their partners may end up taking more than they are entitled to. In addition to this, you may end up spending more time waiting to get all of your forms processed that you would have if you had consulted an attorney. One reason for this is that you may end up gathering the wrong documents and then spending an entire day waiting in a queue at a court house only to find out that you do not have the correct information needed.

From this point of view it may seem best to consult a lawyer in order to determine that you are getting what you are entitled to and are not being taken for a ride by your soon to be ex husband or wife. Another benefit of having legal representation is that should for any reason your uncontested divorce become contested, you will then need a lawyer on your side. If you are half way through the process already and this occurs, seek an attorney’s advice immediately.

My advice would be that if you are planning to conduct a divorce on your own, then seek some sort of legal advice before you begin the process. You can visit a university law department or legal aid should you qualify for legal aid and see what they recommend and then continue on with the process yourself.

DIY Divorce is an original post from: Lawyer South Africa

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1. Criminal matters
2. Civil matters

Firstly, criminal matters pertain to people that are accused of breaking one of the following:

Statute Law:

Statue laws are written laws as agreed upon by the government of South Africa. These laws include Acts that are passed by Parliament such as the Sexual Offences Act or The Constitution of South Africa.

Common Law:

Common laws are not set by Parliament or any level of government for that matter. Instead these laws are determined by the judges in the Courts and therefore are based on a decision made by a judge on a certain case. Common laws include rape, murder, and theft.

So how does this help answer your question of when can and can’t you apply for legal aid? Well, all South African’s are entitled to legal aid of some sorts if they require a lawyer for a criminal matter. This means that there are a lot of avenues that you can take in order to obtain legal representation with regards to a legal matter. For example, you can visit any of the following in order to receive help:

1. Visit one of over forty legal aid board justice centres in South Africa.
2. Approach the Legal Aid Bureau
3. Contact the Legal Resourses Centre
4. Visit your local university law faculty or law clinic

It is however important to note that not all of the above will just take on your case. Many, even in a criminal matter, will require you to pass a means test in order to ensure that you cannot actually afford the costs of a lawyer and that is why you are requesting assistance from them. However this is generally not the case with criminal matters.

Civil matters are the second type of legal matters that Legal Aid works with. Civil matters can be defined as law that deals with disputes between private parties or organisations whereby compensation can be awarded. Most law shows and movies such as Erin Brockovich depict civil cases whereby people are suing large corporations for causing them damage such. The story of Erin Brockovich is a perfect example of a civil matter as the people of the town of Hinkley in California, USA, sued an organisation that had contaminated their water supply which resulted in serious health problems for the residents of the town. These residents were awarded $330million in compensation by the court which the organisation was then liable for as they  had caused the problem.

However, not every South African is entitled to Legal Aid for civil matters and therefore most legal services providers will require you to pass a means test in order to prove that you are in the lower income category and cannot therefore afford an attorney. Should you not qualify for legal aid in this regard you can approach the same legal services providers as mentioned above and they could possibly help you, but there are no guarantees.

Therefore whether you require civil or criminal legal assistance, there are routes that can be taken in order to help you with you matter. It is important that you try and get legal representation should you be sued for any reason or be charged with a criminal offense and you can get a full list of all of the legal representatives in your town or province by visiting www.lssa.org.za or by calling (012) 362 1729.

When Can and Can’t You Apply for Legal Aid? is an original post from: Lawyer South Africa

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