June 2026 | Family Law
“By failing to prepare, you are preparing to fail.” (Benjamin Franklin)
A dementia diagnosis affects far more than memory. As the condition progresses, it can impair a person’s ability to manage finances, make legal decisions, sign contracts, or deal with property and investments.
For many families, the legal implications only emerge when practical problems arise. A bank account needs accessing, a property needs selling, or financial decisions must be made for someone who can no longer act independently.
At that point, many assume a Power of Attorney will help. South African law says otherwise.
The Power of Attorney myth
A Power of Attorney allows one person to act on another’s behalf. It is commonly used when someone is travelling, unavailable, or needs assistance with specific transactions.
What many people do not realise is that a Power of Attorney is only valid while the person who granted it still has legal capacity. In simple terms, they must be able to understand the nature and consequences of their decisions.
Once a person loses that capacity through dementia, Alzheimer’s disease, a stroke, or another condition affecting cognitive function, the Power of Attorney falls away. South Africa does not currently recognise enduring powers of attorney that remain valid after a person becomes mentally incapacitated.
This can create practical difficulties. For example, if a property is sold after the owner has lost legal capacity, a Power of Attorney that was previously valid may no longer authorise the transaction. That can create legal uncertainty at a time when families are already under pressure.
Let’s look at three other options.
1. Curatorship: The traditional route
Where a person can no longer manage their own affairs, the High Court may appoint a curator bonis to take control of their financial affairs.
A curator manages assets, pays expenses, and protects the person’s financial interests. In some circumstances, a separate curator may also be appointed to deal with personal matters such as medical and care decisions.
Curatorship provides important protection, but it can be a lengthy and costly process. The application requires medical evidence, court involvement, and ongoing oversight by the Master of the High Court. For larger or more complex estates, however, it may be the most appropriate option.
2. Administration: A lesser-known alternative
In some cases, a simpler option may be available.
The Mental Health Care Act allows the Master of the High Court to appoint an administrator to manage the property and financial affairs of a person who is unable to manage their own affairs because of a mental illness or severe intellectual disability.
Unlike curatorship, this process does not require a High Court application, making it generally quicker and less expensive.
However, it is only available in specific circumstances and is generally intended for smaller estates. An administrator’s powers are limited to financial and property matters and remain subject to the supervision of the Master.
Professional advice is essential to determine whether this option is available in a particular case.
3. Special trusts: Planning before capacity is lost
Where dementia is diagnosed at an early stage and the person still has legal capacity, a special trust may be worth considering.
Unlike curatorship and administration, which are generally implemented after capacity has been lost, a special trust allows arrangements to be put in place while the individual can still participate in decisions about their future affairs.
Special trusts may also offer tax advantages in certain circumstances and can provide a structured way of managing assets for the benefit of a person who later becomes unable to manage their own financial affairs. Professional advice is essential to determine whether a special trust is appropriate and how it should be structured.
Act sooner rather than later
Dementia presents families with both emotional and practical challenges. The earlier legal planning begins, the more options are available.
A common thread running through curatorship, administration, and trust planning is timing. Once legal capacity has been lost, choices become more limited, and the available solutions often become more complex and costly.
Dementia cannot always be anticipated, but its legal consequences can. Understanding the available options before a crisis develops can help families protect both the dignity and financial wellbeing of a loved one during an already difficult time.
Disclaimer: The information provided herein should not be used or relied on as 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 us for specific and detailed advice.
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May 2026 | Family Law
“Justice cannot be for one side alone, but must be for both.” (Eleanor Roosevelt)
Under the antenuptial contract alone, she would have had no claim on his estate. The court found otherwise. A woman who spent three decades running a home, raising her husband’s children, supporting his career, and making financial contributions to joint expenses received 40% of his estate. The parties were married out of community of property without the accrual system. The antenuptial contract said their estates were separate. Contribution told a different story.
What changed and why it matters
Until recently, redistribution orders under section 7(3) of the Divorce Act were only available to couples married before 1 November 1984. Couples who married after that date and excluded the accrual system in their antenuptial contract had no access to this remedy.
The Constitutional Court changed that, declaring the limitation constitutionally invalid. It found the limitation to be unconstitutional, constituting unfair discrimination that disproportionately affected women, who more often sacrifice financial independence for the benefit of the marriage. The redistribution remedy is now available to couples married out of community of property without accrual, regardless of when they married.
What the law requires
A redistribution order is not automatic. The court must be satisfied that the claimant contributed directly or indirectly to the maintenance or increase of the other spouse’s estate during the marriage. The court then considers the means and obligations of each party, any donations made during the marriage, and any other relevant circumstances, before determining what transfer is just and equitable.
Ordinary spousal duties can be enough. A claimant does not need to show contributions beyond what a spouse would ordinarily do. Managing a household, caring for children, supporting a partner’s pursuits: all of these count. The remedy is nonetheless discretionary. Each case turns on its own facts and the burden of proof rests on the party seeking redistribution.
What the court found
The parties had been together for thirty years, six of them as cohabitees before their marriage in 1999. The wife worked in her husband’s legal practice, cared for his children from a previous marriage, managed both their homes, and made direct financial contributions to municipal accounts for two properties. She received modest remuneration, had no savings, no pension, and no formal qualifications beyond standard eight.
The husband, by contrast, built a successful legal practice, invested in several businesses, accumulated properties, gold coins, artworks, and a family trust. He retired comfortably. She left the marriage at 58 with jewellery worth R45 800 and a broken-down vehicle.
The court accepted that the pre-marital cohabitation period was a relevant supporting factor in the redistribution assessment. Where parties live together as husband and wife and pool their resources, that period can constitute a universal partnership, and here it extended the effective duration of their shared life to thirty years rather than twenty-three.
The court also noted that the husband had not made full disclosure of assets held through the family trust, a factor that informed the court’s overall assessment of his estate. The clean break principle was applied. Rather than granting permanent maintenance, the court ordered redistribution of 40% of the husband’s net estate, together with twelve months of rehabilitative maintenance at R20 000 per month.
What this means in practice
An antenuptial contract excluding accrual is not a guarantee that estates will remain separate at divorce. Where one spouse has contributed, directly or indirectly, to the growth of the other’s estate, a court has the power to order a transfer of assets, notwithstanding the contract.
Generally speaking, the longer the marriage lasts and the greater the disparity between estates, the more likely the Court is to order a transfer of assets. But the outcome is never certain. Courts assess these cases on their individual facts.
Got any questions about your ANC? Ask us.
Disclaimer: The information provided herein should not be used or relied on as 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 us for specific and detailed advice.
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January 2026 | Family Law, Property
“All you need is love… and a good lawyer.” (Anonymous)
February, with its Valentine’s Day chocolates, roses and declarations of undying love, should be a month for romance, not legal niceties. But in the real world, love and the law are inextricably linked because any relationship’s structure and consequences are inevitably governed by legal principles. Losing sight of that can expose you to unnecessary angst, dispute, and litigation.
A recent High Court fight between an estranged couple over their jointly-purchased dream house illustrates this neatly.
Broken dreams, and a fall out over the house
A couple’s four-year romantic relationship saw them living together first in her mother’s house and then in his apartment. They then decided to buy a house together with the idea of making their relationship more permanent.
Unfortunately, that dream came to nought – their relationship ended a month after the property purchase, leaving only one of them to live in the house and to pay all the ongoing costs while they decided what to do next.
In due course they fell out over how to end the co-ownership and how to adjust their respective claims for past and future property costs.
Their dispute reached the High Court, which ordered firstly that the co-ownership be terminated. This was necessary, because no co-owner can be forced against their will to remain a co-owner where the relationship between the co-owners has deteriorated to such an extent that it can’t continue.
Then, using an old Roman law remedy still in use today (the “actio communi dividundo”) the Court dealt with both the division of the property, and the adjustment of the various financial claims between the parties. As is usually the case, these were complex and intertwined after years of cohabitation.
Importantly, the Court noted a modern move away from the traditional principle that the property should necessarily be sold by public auction to the highest bidder, towards a much more flexible approach based on the Court having a wide discretion to ensure a fair and practical outcome in each case.
Thus, having considered all the circumstances, wishes and claims of both parties, the Court ordered that the ex-partner living in the house has a first option (valid for 60 days) to buy the other’s half share at valuation. If he doesn’t, he must offer it for sale on the open market at a fair and reasonable market-related price. If there’s still been no sale after 6 months, the Sheriff of the High Court becomes a “receiver and liquidator” and has 4 months to auction the house. The bond, costs and parties’ related financial claims will be settled from the proceeds as directed by the Court.
“Co-ownership is the mother of dispute” – But it needn’t be
“Co-ownership is the mother of dispute” (“communio est mater rixarum”) is another old Roman law concept mentioned by the Court. It confirms that joint ownership has always, since ancient times, inherently provided fertile ground for instability and dispute.
But that needn’t be so. An upfront agreement between joint owners, whether their arrangement is grounded in a commercial or a personal relationship, can hugely reduce the risks of later uncertainty, disagreement and litigation.
Put as much detail into your agreement as you can, including a detailed process of how to end your co-ownership if required. Litigation – with its delay, expense, and uncertain outcomes – should never be embarked on lightly. As the Court wryly quoted from a previous decision, “a court cannot perform miracles”. It will of course do its best to craft the fairest possible outcome for both parties, but avoiding the dispute altogether is always a better option for everyone involved.
P.S. Don’t forget your cohabitation agreement
As a final thought, if you are living with your life partner, you should have a full cohabitation agreement to cover not only your co-ownership arrangement, but also all the other financial and personal aspects of your relationship that would normally be governed by our marriage laws.
Disclaimer: The information provided herein should not be used or relied on as 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 us for specific and detailed advice.
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January 2026 | Family Law
“For what is wedlock forced but a hell, An age of discord and continual strife?” (William Shakespeare in Henry VI Part I)
This article is a balm for anyone unfortunate enough to be stuck in an unhappy marriage full of Shakespeare’s “discord and continual strife”, yet too scared to consider divorce because of the costs. An uncontested divorce in which you agree on everything need not cost much, but it’s a very different story if you know that your spouse will fight you to the bitter end.
The hard reality is that contested divorces can be extremely expensive. But if your emotional trauma is compounded by the fact that your spouse has a lot more money than you and will use that financial strength to intimidate and outlitigate you, don’t despair!
Outgunned? “Equality of Arms” to the rescue
Enter stage left the “equality of arms” legal principle, which is aimed at ensuring that the outcome of divorce litigation is based on the merits of the case, not on one side’s financial dominance.
In other words, our law says that you should have a fair and reasonable ability to present your case without being disadvantaged because your spouse has greater financial resources. To achieve that, as the financially weaker spouse you can ask the court to order your spouse to contribute to your costs, allowing you to access proper legal advice, to negotiate fairly, to resist pressure to accept unfavourable settlement terms, and, if necessary, to proceed to trial.
What factors will the court consider?
The other side of the coin is that it’s not “open season” on your spouse’s wallet. The court will order only a contribution to costs that is reasonable and necessary considering all the factors relevant to each case, typically:
- The financial resources of both parties
- The level of complexity in the divorce case
- The anticipated expenses for proper legal representation
Bottom line: you’re automatically entitled to a contribution. You must show that you are in genuine need given your own financial situation, that your estimated costs are reasonable in relation to the complexity of the disputes between you, and that your spouse can afford it.
A recent High Court decision provides an excellent example of those principles in action.
A wealthy husband is ordered to pay R1.5 million
The couple in question were married in 2010, out of community of property with the accrual system. They lived, it seems a “lavish lifestyle characterised by frequent overseas trips and a taste for opulence” until the husband left home in 2020. Battle commenced with the wife issuing a divorce summons a few months later.
Five years on we find them locked in dispute over the true extent of the husband’s wealth, with the wife applying for a R2 million costs contribution to cover both her legal expenses and a forensic investigation into her husband’s financial affairs.
In his Financial Disclosure Form (a standard form completed by parties to a divorce) he had listed net assets of R34 million. But the Court – finding that these disclosures were “unreliable”, that he had failed to disclose the value of his shareholdings in two companies and of a property in France, and that “there are huge sums of money not being disclosed” – decided that the wife’s proposed financial investigation was justified.
Having analysed the respective financial positions of the parties and their respective abilities to cover the costs in question, and having decided that the wife could reasonably trim some of her projected expenses, the Court ordered the husband to pay her a contribution of R1.5 million.
Don’t be intimidated by a big war chest
If you are outgunned financially, you may well be entitled to ask for a contribution to your divorce costs in order to level the playing field. Ask us whether you qualify.
Disclaimer: The information provided herein should not be used or relied on as 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 us for specific and detailed advice.
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October 2025 | Family Law
“A family name holds the music of generations – it’s the first inheritance we receive.” (Attributed to Irish poet-philosopher John O’Donohue)
The Constitutional Court has just confirmed (with some significant adjustments) last year’s High Court ruling that both partners in a marriage have equal rights to choose their surname.
Previously, a woman – and only a woman – could choose when marrying to take her spouse’s surname, or to retain her own surname, or to assume a double-barrelled surname (her own surname with her husband’s surname).
However, if a man wanted to do the same (to adopt his wife’s surname or a double-barrelled surname) he had to apply formally to the Department of Home Affairs (DHA) and provide “good and sufficient reason” for wanting to change. The problem with that is that the reason had to be related to “a change in the marital status of a woman” – an impossible ask for men.
A tale of two couples
The Constitutional Court, and the High Court before it, grappled with this issue via applications from two couples whose attempts to depart from the “only women can choose” rule had been thwarted by the existing wording of the Births and Deaths Registration Act.
The couples’ reasons for wanting to depart from the norm will ring a bell with many. One couple wanted their new family to bear the wife’s maiden name as it symbolized her connection to her parents, who had died when she was young. The other wanted both spouses to use a combined (double-barrelled) name so that the wife’s maiden name, which is important to her, was not lost.
Our apex court has now confirmed that this unequal treatment was unconstitutional because it discriminated on the basis of gender, infringing on their rights to equality and dignity.
So, what are your choices now?
In a nutshell, the Court’s order employs gender-neutral language to ensure that everyone, regardless of gender or type of marriage, now has the same automatic rights when it comes to assuming a new surname.
Although the declaration of invalidity is suspended for 24 months to enable Parliament to either amend existing legislation or to pass new legislation, the Court’s ruling includes the provision that in the interim everyone can, as of right and without needing DHA authority:
- After marriage, take their spouse’s surname or, having taken it, resume a previous surname.
- After marriage, divorce or the death of a spouse, resume a previous surname or create a double-barrelled surname.
Any other surname changes (including changes to your children’s surnames) still require application to DHA.
To avoid any confusion, it’s a good idea to tell the marriage officer before you marry what names you’ve chosen so the correct choices appear in the marriage register and on your marriage certificate.
Give us a call if we can help with anything.
Disclaimer: The information provided herein should not be used or relied on as 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 us for specific and detailed advice.
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September 2025 | Family Law
“This [the Stalingrad Strategy] is a strategy of wearing down the plaintiff by tenaciously fighting anything the plaintiff presents by whatever means possible and appealing every ruling favourable to the plaintiff. Here, the defendant does not present a meritorious case. This tactic or strategy is named for the Russian city besieged by the Germans in World War II.” (Judges Matter website)
Divorce disputes are of course intensely personal and emotionally charged affairs — and when feelings run high the resultant fallout can mean protracted, bitter, and costly litigation.
If you are being subjected to a barrage of such litigation, take heart. In balancing our constitutional right to access the courts against the need to prevent people from abusing court processes with endless and meritless litigation, our law provides for “vexatious litigants” to be stopped dead in their tracks.
A recent pair of High Court decisions (featuring the same parties and the same divorce dispute, but in two different battles) provides a textbook example.
A saga of litigation, complaints, threats, and blackmail
This 11-year saga dates from the start of divorce proceedings in 2014, with the financial aspects of the divorce being finalised only in 2020. The ex-wife was awarded a total of R16.8m in accrual, maintenance, and costs. The ex-husband’s property-owning trust was held to be his alter ego, and that opened the door for the house held by the trust (a valuable property in an upmarket Cape Town golf estate) to be sold as his asset.
He responded with a concerted campaign of unrelenting litigation, complaints, and threats — all aimed, the Courts have now determined, at overturning the divorce order.
The list of his serial litigation and intimidation tactics is both long and extraordinary, but suffice it to say that a flood of applications of all sorts to a wide variety of courts (all the way up to the Constitutional Court) is just the tip of the iceberg. He has also lodged professional complaints against all the attorneys and advocates involved in this matter (including his own legal team) and against the Divorce Court Judge. Not even his own financial expert escaped a formal complaint. Allegations of perjury, fraud and collusion abound. He has threatened massive lawsuits (for R210m and R190m to date) against various legal representatives. He was even found to have resorted to blackmail.
Neither his singular failure to reap anything but defeat from any of these endeavours (barring a few minor skirmish successes, and noting that some of the more recent matters remain pending), nor the slew of costs orders made against him (at least one of them on the punitive attorney and client scale), seem to have deterred him in the slightest.
His latest rearguard action, a failed attempt to postpone the auction sale of his house, has earned him yet another defeat and another costs order, with the cherry on top being his being declared a “vexatious litigant”. He can now no longer launch legal proceedings without specific High Court authority to do so.
All’s fair in love and lawfare? Not so fast
As the Court put it: “A fundamental doctrine in our law is, there must be an end to litigation … nobody should be permitted to harass another with second litigation on the same subject as such litigation can be viewed as an abuse of process.” Our courts accordingly have the power to declare such a person a “vexatious litigant”, thus restricting them from launching any new legal proceedings without specific court authority.
To have your opponent declared vexatious, you will need to prove that the person “has persistently and without any reasonable ground instituted legal proceedings in any court or in any inferior court, whether against the same person or against different persons.” There are two legs to that, and note that you can’t stop anyone from pursuing normal appeal and review processes — there must be some abuse of judicial process.
You may also be able to get an order that your opponent provide security for your costs. Although, in this particular matter, the ex-wife was unable to convince the Court to grant her such an order.
Disclaimer: The information provided herein should not be used or relied on as 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 us for specific and detailed advice.
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