Ismael Cerfonteyn Attorneys

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Ismael Cerfonteyn Attorneys We provide excellent legal services tailored to your needs.

CAN YOUR SPOUSE CLAIM SPOUSAL MAINTENANCE EVEN IF YOU ARE MARRIED OUT OF COMMUNITY OF PROPERTY?A common misconception is...
15/10/2026

CAN YOUR SPOUSE CLAIM SPOUSAL MAINTENANCE EVEN IF YOU ARE MARRIED OUT OF COMMUNITY OF PROPERTY?

A common misconception is that if you are married out of community of property, you automatically lose the right to claim maintenance from your spouse when getting divorced. This is not necessarily true.

WHAT DOES THE LAW SAY?

In terms of Section 7(2) of the Divorce Act 70 of 1979, a court may order one spouse to pay maintenance to the other following a divorce, even where the parties were married out of community of property, whether with or without the accrual system.

WHAT WILL THE COURT CONSIDER?

When deciding whether spousal maintenance is appropriate, the court may consider:

✅The financial means and earning capacities of both spouses.
✅The respective financial needs and obligations of the parties.
✅The duration of the marriage and the ages of the parties.
✅The standard of living enjoyed during the marriage.
✅The conduct of the parties, insofar as it is relevant to the breakdown of the marriage.
✅Any other factor the court considers relevant.

IS SPOUSAL MAINTENANCE AUTOMATIC?

No. Spousal maintenance is not an automatic entitlement simply because you were married.

The court considers the particular circumstances of each case, including whether one spouse requires financial support and whether the other spouse has the means to provide it.

Depending on the circumstances, maintenance may be awarded for a limited period or, in appropriate cases, for a longer duration.

THE IMPORTANT DISTINCTION

Being married out of community of property does not necessarily mean that you have no financial obligations towards your spouse.

Your matrimonial property regime governs your property rights, but it does not automatically exclude a claim for spousal maintenance.

To schedule a consultation, you may contact Clayton at 0680058642 / Mushfiqah at 0767096297. Email: [email protected], Website: www.ismaelcerfonteyn.co.za

MEDIATION IN LEGAL DISPUTES: MORE THAN JUST A FORMALITYNot every legal dispute needs to end with a court deciding who wi...
09/10/2026

MEDIATION IN LEGAL DISPUTES: MORE THAN JUST A FORMALITY

Not every legal dispute needs to end with a court deciding who wins and who loses.

Mediation is an important mechanism for resolving disputes, yet it is often approached as merely another procedural step that parties must complete before proceeding with litigation.

But mediation should never be treated as a mere box-ticking exercise.

The purpose of mediation is to provide parties with an opportunity to engage constructively, identify the issues in dispute, explore possible solutions, and, where possible, reach an agreement that is acceptable to everyone involved.

WHY IS GENUINE PARTICIPATION SO IMPORTANT?

For mediation to have a meaningful prospect of success, both parties should approach the process with:
✅Good faith: A genuine willingness to engage in discussions aimed at resolving the dispute.
✅An open mind: Understanding that a workable solution may require compromise from both sides.
✅Realistic expectations: Recognising the legal, financial and practical implications of continuing with litigation.
✅A willingness to listen: Appreciating that understanding the other party's position does not necessarily mean agreeing with it.
✅A solution-oriented approach: Focusing on what can reasonably be achieved, rather than simply maintaining opposing positions.

MEDIATION DOES NOT MEAN SURRENDERING YOUR LEGAL RIGHTS.

It does not require a party to accept an unfair proposal or abandon a legitimate claim or defence.

Rather, it creates an opportunity to explore whether a dispute can be resolved without the additional costs, delays and uncertainty often associated with litigation.

THE REAL VALUE OF MEDIATION

In many disputes, particularly those involving family relationships, property, contractual disagreements and ongoing personal or business relationships, a negotiated outcome may offer practical solutions that a court order alone cannot necessarily achieve.

However, where parties attend mediation with no genuine intention of considering a resolution, a valuable opportunity may be lost.

OUR VIEW IS SIMPLE:

When mediation is appropriate, it deserves to be approached seriously, constructively and with a genuine intention to explore the best possible outcome.

To schedule a consultation, you may contact Mushfiqah at 0767096297 / Clayton at 0680058642. Email: [email protected], Website: www.ismaelcerfonteyn.co.za

MENTAL CAPACITY: DOES IT AFFECT THE VALIDITY OF AN AGREEMENT?A signature is important, but a signature alone does not al...
06/10/2026

MENTAL CAPACITY: DOES IT AFFECT THE VALIDITY OF AN AGREEMENT?

A signature is important, but a signature alone does not always settle the question of whether an agreement is legally enforceable.

One of the issues that may arise is the mental capacity of the person at the time the agreement was concluded.

WHY DOES MENTAL CAPACITY MATTER?

When entering into an agreement, a person must generally have sufficient capacity to understand the nature and consequences of what they are doing.

This can become particularly important where agreements involve:
✅The sale or transfer of property
✅Loans or significant financial obligations
✅Suretyships
✅Business transactions
✅Settlement agreements
✅Donations or disposal of valuable assets

For example, imagine an elderly person signs an agreement transferring or selling a valuable asset, but there are serious concerns that, at the time of signing, the person did not understand what was being signed or what the consequences would be.

The fact that “there is a signature on the document” does not necessarily end the enquiry.

Importantly, however, age alone does not mean that someone lacks mental capacity.

Similarly, a medical diagnosis does not automatically mean that every agreement concluded by that person is invalid.

The circumstances at the time the agreement was concluded are particularly important.

Questions may include:
✅Did the person understand the nature of the transaction?
✅Did they understand the consequences of signing?
✅Were they capable of making a rational decision regarding the transaction?
✅Is there medical or other evidence concerning their condition at the relevant time?

THIS CAN BECOME ESPECIALLY IMPORTANT IN FAMILY TRANSACTIONS.

Disputes often arise only afterwards, sometimes when property has already been sold, money has changed hands, or the person who signed the agreement has passed away.

If there are genuine concerns about a person's mental capacity before an important agreement is signed, do not simply proceed and hope that the signature will protect everyone later.

Obtaining appropriate legal advice - and, where necessary, appropriate medical assessment - can prevent a far more complicated dispute later.

A signature is evidence of agreement. But the law may still ask an important question: did the person have the legal capacity to understand and enter into that agreement?

To schedule a consultation, you may contact Clayton at 0680058642 / Mushfiqah at 0767096297. Email: [email protected], Website: www.ismaelcerfonteyn.co.za

EXPLAINING LEGAL COSTS When a court makes a cost order against the unsuccessful party, it does not automatically mean th...
29/09/2026

EXPLAINING LEGAL COSTS

When a court makes a cost order against the unsuccessful party, it does not automatically mean that every rand you paid to your attorney will be recovered.

There is an important difference between:

Attorney-and-client costs: The fees and expenses you are responsible for in terms of your agreement with your attorney; and

Party-and-party costs: Certain legal costs that may be recoverable from the opposing party where the court has made an appropriate costs order.

Even where you are successful and costs are awarded in your favour, there may therefore still be a shortfall between what you paid your attorney and what you ultimately recover from the other side.

There are also different types of costs orders. In appropriate circumstances, a court may order costs on a more punitive scale, such as attorney-and-client costs, but this is not automatically awarded simply because one party wins.

Another important consideration is this: Winning a case does not necessarily mean recovering your money immediately.

If the unsuccessful party does not pay voluntarily, further enforcement steps may be required, which can involve additional time and costs.

Before starting litigation, it is therefore important to consider not only:
✅whether you have a good case;
✅what you are claiming;
✅the likely legal costs involved;
✅whether some of those costs may ultimately be recoverable; and
✅whether the other party will realistically be able to satisfy the judgment.

To schedule a consultation, you may contact Mushfiqah at 0767096297 / Clayton at 0680058642. Email: [email protected], Website: www.ismaelcerfonteyn.co.za

“WE NEVER SIGNED AN ANTENUPTIAL CONTRACT. WHAT DOES THAT MEAN NOW THAT WE ARE DIVORCING?”This is something many couples ...
25/09/2026

“WE NEVER SIGNED AN ANTENUPTIAL CONTRACT. WHAT DOES THAT MEAN NOW THAT WE ARE DIVORCING?”

This is something many couples only start thinking about when their marriage comes to an end.

If you entered into a civil marriage without concluding an Antenuptial Contract (ANC) beforehand, the general position is that you are married in community of property.

But what does that actually mean when you get divorced?
In simple terms, marriage in community of property creates a joint estate. This means that, subject to certain exceptions, the assets and liabilities of both spouses form part of one joint estate.

This can include:
✅ Immovable property, such as your house;
✅ Vehicles and other assets;
✅ Certain pension interests; and
✅ Debts and other liabilities.

Where parties are married in community of property, the divorce must deal with the joint estate as a whole and how that estate is to be divided.

The parties may reach an agreement regarding the division of their assets and liabilities and record this in a settlement agreement. Where they cannot agree, the patrimonial consequences may have to be determined through the divorce proceedings.

This is why your matrimonial property regime becomes particularly important when a marriage ends.

Not having an Antenuptial Contract does not mean that there are no rules governing your property. In fact, it means that your estates were joined from the moment you got married.

Before signing a divorce settlement agreement, make sure that you understand exactly what forms part of the joint estate, what liabilities exist, and what you may be entitled to upon divorce.

To schedule a consultation, you may contact Clayton at 0680058642 / Mushfiqah at 0767096297. Email: [email protected], Website: www.ismaelcerfonteyn.co.za

WHERE PARTIES ARE JOINT OWNERS OF IMMOVABLE PROPERTY, CAN ONE OWNER EVICT THE OTHER OWNER?It is a question that often ar...
14/09/2026

WHERE PARTIES ARE JOINT OWNERS OF IMMOVABLE PROPERTY, CAN ONE OWNER EVICT THE OTHER OWNER?

It is a question that often arises after a relationship, marriage, family arrangement or property investment breaks down:

“The property is registered in both our names, but I want the other owner out. Can I apply for an eviction order?”

Where two people are co-owners of immovable property, each owner ordinarily has an undivided share in the property and a right to use and occupy it, subject to the corresponding rights of the other co-owner.

This is important because an eviction application normally requires the person occupying the property to be an unlawful occupier.

A co-owner does not ordinarily become an unlawful occupier merely because:
✅the relationship between the parties has ended;
✅one owner has moved out;
✅one owner pays more of the bond or expenses;
✅the parties can no longer live together; or
✅one owner wants the property sold.

So what can you do?
Where co-owners can no longer agree on what should happen to the property, the appropriate remedy may instead be an application for the termination of the co-ownership.

Depending on the circumstances, a court may ultimately order that:
✅one co-owner purchases the other's share;
✅the property be divided, where practically possible; or
✅the property be sold and the proceeds divided between the owners.

The important distinction is therefore:
Wanting someone out of the property does not necessarily make it an eviction matter.

Sometimes the real dispute is not about unlawful occupation at all - it is about ending the co-ownership and determining what must happen to the property.

Every matter will depend on the ownership structure, any agreement between the parties, matrimonial property regime, court orders and the circumstances surrounding occupation.

To schedule a consultation, you may contact Clayton at 0680058642 / Mushfiqah at 0767096297. Email: [email protected], Website: www.ismaelcerfonteyn.co.za

GETTING DIVORCED - WHO GETS THE HOUSE? One of the biggest concerns during a divorce is often what will happen to the fam...
08/09/2026

GETTING DIVORCED - WHO GETS THE HOUSE?

One of the biggest concerns during a divorce is often what will happen to the family home.

The answer is not always straightforward and will depend on a number of factors, particularly how you are married and how the property forms part of your respective estates.

If you are married in community of property, the property may form part of the joint estate, and its value will ordinarily have to be dealt with as part of the division of that joint estate.

If you are married out of community of property, the position may be different. Ownership of the property, the terms of your antenuptial contract, and whether the accrual system applies may all become relevant.

Importantly, divorce does not necessarily mean that the property must be sold.

Depending on the circumstances and what the parties agree, or what the Court ultimately orders (in cases where parties are unable to reach a settlement) the property could, for example:
✅Be sold and the proceeds dealt with as part of the divorce settlement;
✅Be retained by one spouse, with the other spouse's rights or financial interest appropriately dealt with; or
✅Remain registered in one spouse's name where that is consistent with the parties' matrimonial property regime and the terms of the divorce.

Before agreeing to sell the property, transfer it to your spouse, or sign a settlement agreement, it is important to understand what you are legally entitled to and what the proposed settlement actually means for you.

Divorce is not only about ending a marriage. It also involves properly dealing with the financial and property consequences of that marriage.

For assistance with divorce proceedings, settlement agreements and related property matters, contact Ismael Cerfonteyn Attorneys Inc.

Mushfiqah at 0767096297
Clayton at 0680058642
Email: [email protected]
Website: www.ismaelcerfonteyn.co.za

07/09/2026

WIE ERF AS DAAR GEEN TESTAMENT IS NIE?

Wanneer iemand sterf sonder ’n geldige testament, word die boedel in terme van die Wet op Intestate Erfopvolging verdeel.

Wie erf, hang af van watter familielede die oorledene agterlaat.

Dit kan onder andere die volgende persone insluit:
✅’n Gade
✅Kinders en ander afstammelinge
✅Ouers
✅Broers en susters, of hul afstammelinge
✅In sekere gevalle, ander bloedverwante

Byvoorbeeld:
✅Laat die oorledene ’n gade maar geen kinders na nie, erf die gade die intestate boedel.
✅Laat die oorledene kinders maar geen gade na nie, erf die kinders die boedel volgens die voorgeskrewe reëls.
✅Laat die oorledene ’n gade én kinders na, kan beide die gade en kinders geregtig wees om te erf. Die verdeling word volgens ’n statutêre formule bereken.

Maar hier is die belangrike punt:
As jy sonder ’n testament sterf, besluit jy nie self wie jou bates ontvang nie. Die wet bepaal wie jou erfgename is en hoe jou boedel verdeel moet word.

’n Geldige testament gee jou die geleentheid om vooraf te bepaal wie jou bates moet erf en kan baie onsekerheid vir jou familie voorkom.

Testamenteweek is ’n goeie geleentheid om seker te maak dat jou testament bestaan, geldig is en steeds jou huidige wense weerspieël.

Kontak ons by [email protected]
Clayton: 068 005 8642
Mushfiqah: 076 709 6297

WANT TO SELL YOUR PROPERTY? BUT YOU ARE DEALING WITH UNLAWFUL OCCUPIERS?You have decided to sell your property. There is...
03/09/2026

WANT TO SELL YOUR PROPERTY? BUT YOU ARE DEALING WITH UNLAWFUL OCCUPIERS?

You have decided to sell your property.

There is just one problem: someone is occupying it and refuses to leave.

For property owners, this can quickly become a serious obstacle to a sale.

A prospective purchaser wants vacant occupation on transfer, and an unlawful occupier can delay the transaction, discourage potential buyers, or create uncertainty about when the property can actually be handed over.

But being the registered owner does not mean that you can simply remove the occupiers yourself.

You generally cannot:
✅Change the locks to keep the occupiers out;
✅Remove their belongings;
✅Cut off water or electricity to force them to leave; or
✅Physically remove them from the property without lawful authority.

Where a person occupies residential property without the owner's consent or another legal right to remain, eviction must generally take place through a court order and in accordance with the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act (PIE).

The Court must consider the circumstances and determine whether an eviction would be just and equitable.

This means that an eviction is not necessarily an overnight process - and waiting until you have already found a purchaser can create unnecessary complications.

Planning to sell? Deal with the occupation issue early.

If your property is occupied by people who refuse to vacate, obtaining legal advice before putting the property on the market may help you understand the eviction process, likely timeframes and how the occupation could affect the proposed sale.

To schedule a consultation, you may contact Clayton at 0680058642 / Mushfiqah at 0767096297. Email: [email protected], Website: www.ismaelcerfonteyn.co.za

"Defending your rights with integrity, dedication, and a commitment to justice."To schedule a consultation, contact Clay...
01/09/2026

"Defending your rights with integrity, dedication, and a commitment to justice."

To schedule a consultation, contact Clayton Ismael at 068 005 8642 or email [email protected]

Address

31 Mechau Street, De Waterkant
Cape Town
8001

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