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Frequently asked questions

FREQUENTLY ASKED QUESTIONS

1. What do I do if I receive a Summons?

This will depend on whether or not you wish to defend the matter and if you do wish to defend the matter, you would have to have a valid lawful defence to the claim (not every ‘defence’ is a valid legal defence). If you do have a valid defence then you may file a Notice of Intention to Defend with the attorney who issued the Summons and with the Clerk of the Court (the jurisdiction of the Court will be indicated on the Summons and it will be with this Clerk). This notice must be filed within the time period stated in the Summons and there would also be a space on the Summons for you to indicate your intention to Defend the matter. If you have received a Summons for a claim that you do acknowledge, and you are unable to pay the full outstanding balance, then it is advisable that you contact the attorneys who issued the Summons in order to make payment arrangements. Should you not do this, the attorneys may proceed with Judgment and follow the ordinary collection procedure, which would cost you more in legal fees.

2. If my ex-spouse or mother of my child refuses me access to my child, what are my rights?

This would depend on whether or not you have a Divorce Order in place. If you were married and have a Divorce Order which grants you the right of access, then you may lodge a charge of contempt of court against your ex-spouse. If you were not married, the Children’s Act 38 of 2005 grants you automatic parental rights (and responsibilities) if you comply with certain criteria, including criteria relating to maintenance obligations towards the child. If there is any dispute between you and the mother, the matter must be referred to mediation and you may approach the Children’s Court (in the area where the child resides) for the purpose of having a parental plan put into place.

3. If the natural father of my child cannot pay maintenance for the child, can I claim maintenance from his parents?

You may claim maintenance from the paternal grandparents of your child, to the extent that the natural father of the child is unable to pay maintenance.

4. If my spouse and I are getting a divorce, can I hold her liable for the debts that are on my name?

If an agreement is reached between you and your spouse with regards to the payment of debt, the agreement will be binding but only between yourselves. In other words, your spouse can agree to pay a debt that is in your name and you would have a right of recourse against her if she reneges on this agreement, but such an agreement does not bind your creditor and your creditor may enforce collection proceedings against you.

5. Is a verbal contract binding?

A verbal contract is a contract and it is binding. However, we always recommend that a verbal contract be reduced to writing in order to be sure of the content of the agreement. This applies to all agreements, even if they may seem very simple. Should there be any dispute about what was agreed upon at a later stage, you can hold the other party to the agreement to the written contract and refute any other evidence that does not accord with the contract.

 

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