+ Legal Costs:
One is often unprepared for the extent of legal costs which are involved in resolving a legal issue. It is important to discuss this with your attorney and come to a suitable arrangement. Request the hourly rate and even a breakdown of how this is applied. It is difficult to estimate costs for a matter as each one is different and the costs are dependent on the amount of time spent. Some legal matters are more predictable than others and we always try to give you a fair indication of what to expect.
+ Legal Costs – scales:
Legal costs fall into 3 scales.
Party and Party legal costs: this is a scale determined by the Court (Magistrate’s court act and High Court Act) and these costs are awarded to the successful litigant in an action or application. These costs are substantially lower than what your attorney charges you. For example the successful litigant will recover R 25 per 100 words written in a letter, whereas the litigant is charged R 100 for this by the attorney. There is thus a substantial difference. It is for this reason that the attorney carefully examines the quantum/amount being sued for, and the strength of the merits/the case, to best advise whether litigation is in fact recommended. The successful litigant will always be out of pocket in respect of legal costs.
Attorney and Client Legal costs: Some contracts, like leases, make provision for the recovery of legal costs on the attorney and client legal scale. This will mean the successful litigant recovers more legal costs, however not all. This scale allows for additional items, like communications between attorney and client, which is disallowed by the Party and Party scale.
Attorney and Own client costs: This is the hourly rate an attorney charges you and the actual legal costs one actually incurs. The reason these are not recoverable is because the other party is not party to the agreement between you and your attorney and should not be penalized by one party for example employing a very expensive attorney.
The first test the Court applies is what the mother needs in terms of support for the child/children. She will have to substantiate her claim and list all the expenses and provide documentary proof. Both parents are legally obliged to support the children, usually pro rata to their incomes. This means that the total expenditure for the children is divided between the parents pro rata to their incomes. Any expenses which are considered not necessary or excessive will be curbed at a request to the Court. The second test is the affordability factor. If the party from whom the maintenance is being claimed is cannot afford the sum claimed, it is up to that party to prove so. The party from whom maintenance is being claimed will have to disclose his/her income and expenses and show what surplus, if any is available. The first and foremost duty is to maintain the children, thus items like contributions to Retirement Annuities or policies are excluded as amassing assets is considered secondary. If the party from whom maintenance is being claimed cannot afford the maintenance (and the expenses proven in respect of the children are reasonable and necessary) but the party has assets he/she can liquidate/sell, the Court will order him/her to do so.
+ General Maintenance
General maintenance claimed excludes Medical and Educational costs. These are over and above the general maintenance.
+ School fees
Both parents are liable for school fees, irrespective of which parent signed the child into the school.
+ Non-payment of maintenance
It is a criminal offence not to pay maintenance as per a Court order. Once the arrears/non-payment is reported to the Maintenance Court in your district, the errant party will have to firstly appear in Criminal Court and will have to provide an explanation. The matter is then referred back to Maintenance court for an maintenance enquiry to establish if circumstances have changed and he/she is unable to afford the present order for some reason, and thus have grounds to apply for a reduction. Hopefully this does not happen and the person against whom the order is made returns to prompt payment.
It is not something one likes to think of, but it is indeed one of the most important. Please have a will done. It is incredibly complicated and complex if you should pass, to administer an intestate estate. It is a relatively low cost issue, and takes care of your loved ones in their time of grief not to have to worry about additional problems. One also needs to remember, in the chaos of going through a divorce, once the process is complete to amend your will accordingly.
Contracts delineate each parties’ rights, duties and obligations versus the other. This is recorded within the 4 corners of the page and limits disputes at a later stage. The parties have to be of one mind. It helps with preventing misunderstandings. Each person has their own perceptions and often what is said is not understood the same way. By entering into a contract a certainty of understanding is established. One could almost say you cannot afford not to have one.
Ask a question