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How is custody usually decided?

In the past, mothers were usually granted full custody and fathers received regular access rights. However, these days many people opt for joint custody, which means shared parenting and financial responsibilities. The bests interests of the children involved is prioritised, with the procedure involving recommendations from one or more of the Family Advocate a child psychologist or social worker. The High Court makes the order determining custody and access rights.

Is a partner legally obliged to take on financial responsibility for a new spouse’s children from a previous marriage?

Legally, a new spouse is under no obligation to take over financial maintenance of a partner’s children, unless he or she adopts them. However, he or she might take on these responsibilities for moral and emotional reasons. Before a re-marriage, both parties need to be candid about their existing financial responsibilities and future expectations. The pair should agree upfront on any financial obligations a new spouse will undertake and consider having these written into the antenuptial agreement, in consultation with an attorney and financial planner. Ultimately, a step-parent must act as a responsible care-giver for the step-children under his or her care.

What if two parents who weren’t married, split up and one party decides to get married? How is custody and maintenance decided?

Both parents are equally responsible for the children, however, because there’s no court process or divorce order, they are in a ‘vacuum’ in terms of arranging maintenance and custody. It’s advisable for them to ask an attorney to draw up a settlement where they agree on maintenance and who the children will live with – either shared or with one of them. To ensure that the welfare of minor children is maintained, the parents should also approach the family advocate for a report. If, for example, the father refuses to support his children and the mother can’t afford it on her own, she can approach the Maintenance Court for a court order.

Does remarrying mean the ex-spouse isn’t obligated to continue to pay maintenance?

A remarriage has no bearing on a natural parent’s existing maintenance responsibilities, which are to pay for a child’s education, accommodation and upkeep until he or she is self-supporting.

What if a person cannot afford to pay for two families?

A person cannot simply abandon maintenance payments. The individual is legally obliged to honour these, even if it means less money available for a ‘new’ family. This is why honesty is vital and it’s crucial for a new spouse to be fully informed of all maintenance payments due to an ex-spouse. If a person wants to reduce maintenance payments, this has to be settled in Maintenance Court and there needs to be supporting evidence of a good justification, such as a retrenchment or failed business venture. If a matter cannot be settled in Maintenance Court, it will be escalated to the High Court.

What will the implications be if the blended family parents get divorced? What rights does a step-parent have to the children?

Unless a step-parent has legally adopted an ex-spouse’s children, he or she has no legal rights. Similarly, should the children’s biological parent pass away, even if they’re living with a step-parent, their other surviving natural parent/guardian can claim them back, unless the step-parent can prove that this is potentially harmful to the child.

Who has the right to an estate?

If a last will and testament isn’t revised following a divorce, an ex-spouse may inadvertently remain a beneficiary. For three months after a divorce, an ex-spouse is automatically disinherited. Following this, if a will isn’t altered and the ex is still mentioned in the will as an heir, this person will still inherit when his or her ex dies.

  • Claiming maintenance from the estate
    There needs to be sufficient funds to cover maintenance payments as these continue after death, until the children are self-sufficient or at least 18 years. Prescription is 30 years on a maintenance order, so basically a claim can be made at any time, even if no maintenance payments were made for 10 years, for example. If there are insufficient funds, the money owed will be reclaimed from the estate as these claims take priority over legacies.
  • Step-parent’s estate
    A step-parent has no obligation towards the step-children in his or her will and estate. However, as dependents, step-children can claim from a deceased step-parent’s pension, provident and retirement annuity funds, based on their age, needs and level of dependency on the step-parent. If there’s no will, biological children (and the spouse) are the automatic inheritors of the estate, unless step-children have been adopted, which means they have an equal claim. If there’s a will which fails to make adequate provision for the biological or adopted children, then the children have a right to claim maintenance from the deceased estate.
  • Ex-spouse’s claim to the estate
    Presupposing a will was changed, an ex-spouse is not entitled to anything from a deceased former spouse except maintenance arrears. If maintenance payments are not up-to-date or the deceased didn’t comply with a payment required by the divorce order, the ex-spouse has every right to claim this debt. This crops up often in deceased estates where proper planning has not been done.

What if people get remarried under the civil union act or have a customary marriage?

The laws regarding custody, maintenance and the estate remain the same. Where there is more than one spouse or civil union partner, they are treated equally before the law. In conclusion: it’s best to make a will and plan ahead.

Sanlam Life Insurance is a licensed financial service provider.
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