Issues to consider when contemplating a divorce in South Africa

Author: Sasha Goldstein

Deciding to issue divorce proceedings against your spouse is a difficult and emotional decision. Many clients are in the dark as to what needs to be considered when deciding to proceed with a divorce. Below are a few of the main issues to be considered and the most common points of contention between spouses. Hopefully, by understanding what issues may lie ahead, clients may be better prepared to deal with an impending divorce.

  1. Marital regime

The first question is under what marital property regime was a couple married. In South Africa there are 3 types of marital regimes, all with different consequences regarding the couple’s individual or joint property upon the dissolution of their marriage by divorce.

  • The automatic marital property regime in South Africa is ‘in community of property’. Essentially, what this means is that the assets and liabilities of each spouse, obtained before and during the marriage, are put into a hypothetical “pot” and divided equally upon divorce.
  • The second marital property regime is called ‘out of community of property with the operation of the accrual system’. This is where the spouses enter into an antenuptial contract before marriage. This allows spouses to retain their own assets upon divorce, but to share in the gains obtained during the marriage. Each spouse will enter the marriage with a commencement value, and upon divorce, the difference between the net increases in each spouse’s estate during the marriage will be divided equally between the spouses.
  • The final marital property regime is ‘out of community of property excluding the accrual system’. Again, the spouses must enter into an antenuptial contract before marriage, and specifically exclude the accrual system. This is the simplest marital property regime and means that each spouse retains his or her own assets. There is no sharing of property and this system causes the least issues upon dissolution of the marriage.

2. Parental rights and responsibilities in relation to a child

Section 18 of the Children’s Act 38 of 2005 provides strict guidelines within which children are to be involved in divorce proceedings. There are four main parental responsibilities and rights that all parents of minor children (below the age of 18 years old) may have fully or in some cases, only specifically. The parental responsibilities and rights that a person may have in respect of a child, include the responsibility and right:

2.1.To care for the child;

2.2. To maintain contact with the child (one parent to have primary residence of the child and the other to have specified contact to the child);

2.3. To act as guardian of the child (children do not have legal capacity and therefore both parents are automatic legal guardians of their children and any legal decision regarding the child includes both parent’s consent);

2.4. To contribute to the maintenance of the child (as one parent may have primary residence, the other must contribute towards maintaining the child’s lifestyle and no parent is exempt from this responsibility no matter what their salary is).

3. The final issue to be considered when contemplating a divorce is called spousal maintenance. This is maintenance that one spouse pays to the other upon divorce to help that spouse maintain their own lifestyle and/or get back on their feet after moving out, for example. When can a spouse claim spousal maintenance:

  • The relationship between the parties (it’s enough if they are spouses in a same-sex or heterosexual relationship);
  • A need to be supported (for example a spouse being unable to find meaningful employment);
  • Adequate resources on the part of the spouse being called upon to support.

There are two types of spousal maintenance, namely:

  • Rehabilitative – this is where one spouse pays the other a monthly amount (or one lump sum), which will help maintain that spouse for a fixed period. This can be anywhere from 1 month to 10 years, but the point is, it must be a fixed period.
  • Lifelong – this is self-explanatory and means that one spouse must maintain the other until that spouse’s death or remarriage.

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