Your marriage has fallen apart, what now? (written by Shando Theron)

Even though it may feel that your world is falling apart, in truth it’s not, if you look around you, 3 out of 5 people that you can see have, or will, go through the same situation.

The bottom line is all marriages will one day come to an end, either by death or by divorce. In this article I will focus on what to do if it is by divorce. Below are some things that you should know as forewarned is forearmed.

Some points to ponder:-

Children:-

When there are minor children involved, that means children under the age of 18[1], there are certain factors that come into play:

(Alternate Dispute Resolution) Mediation: –

The courts, specifically the High Court being upper guardian of all minor children, have taken a dim view of parents whom take to litigation without attempting some form of alternate dispute resolution, usually mediation.

Mediation in the context of divorce litigation is not to “patch things up” in an attempt to restore a normal marriage relationship between the parties but rather and attempt to settle issues via a consultative process as opposed to an adversarial litigious one.

Such issues such as spousal maintenance, maintenance for the children, whom will be the custodial parent of the children, contact, care and access to the children by the non-custodial parent and how the assets in the estate will be divided and, to what extent the antenuptial contract, if there is one, will be deviated from, (if at all).

The reason for this is that our courts, and specifically our divorce law, are adversarial and combative in nature and whenever there are children involved; the yardstick employed by the Constitution[2] and the Children’s[3] Act is that of the “best interest of the child”.

In short, for parents to be involved in adversarial litigation is accepted as not being in children’s best interest as when “Elephants do battle it is the grass that gets trampled”, being the children.

Maintenance for the children: –

In terms of the Maintenance Act[4], parents have a common law and statutory duty to support their children vis a vis the child(s) reasonable living, education, food clothing, medical care and accommodation needs[5].

Maintenance for children is broadly divided into 3 main areas, the cash component, the educational costs and the medical costs.

The cash component:-

The cash component is the monthly amount of cash that the non-custodial parent pays to the custodial parent (the parent that the children live with) for daily consumables such as their portion of the bond/rent, food, electricity, fuel, food and clothes. A rule of thumb is that each parent should contribute 50 % of such costs but in terms of the Maintenance Act[6], “parent’s respective shares of such obligations are apportioned between them according to their respective means”, i.e. the parent whom earns more will pay more.

The Educational costs:-

These costs are again subdivided into, Academic costs – being the School or University fees, stationary costs (which these days can include an IPAD) school uniforms, extra mural activities, extra mural equipment and school and sports tours. A good attorney should be able to divide these up equitably between the parents based on their respective incomes.

Medical costs:-

This is divided into the medical aid contribution and into costs not covered by medical aid and is usually split between the parents.

There are some common misconceptions regarding maintenance, the first being that a parent’s obligation to pay maintenance ceases when the minor child reached the age of majority[7]. This is not so, a parent’s obligation to maintain a child’s reasonable needs ceases when the child does not reasonably require maintenance any more. Thus, a child whom is over the age of majority, but is still diligently studying does require maintenance.

The second major misconception is that access to children and maintenance are interlinked, in that if a person (usually the father) for whatever reason fails to meet his maintenance obligations that the opposing parent (usually the mother) now has the right to refuse the father access. This is not so, and although the father is probably in contempt of an order of court regarding the payment of maintenance the mother now is also falling foul of the law. When a father cannot pay maintenance (due to a lack of means or for another reason) he cannot be refused access to his children, conversely, the children cannot be denied their right to see their father.

The converse is also true; even if a parent wants nothing to do with children they still have a statutory and a common law duty to pay maintenance for their children[8].

The division of the above responsibility is based on what the parents are earing at the time, not how much money that had in the past, as fortunes, especially in this town, do change and can do so rapidly. Also, maintenance orders given by the court can be altered based on changed circumstances.

Spousal maintenance:-

Spouses have a common law duty to support each other but that duty comes to and end upon divorce[9].

This however is not the end of it as in terms of the Divorce Act, [10] the court can order that one spouse pay maintenance to another spouse, either for a period of time, known as rehabilitative maintenance to allow the beneficiary to re-enter the labour market or permanent / lifelong maintenance, being until death or remarriage of the beneficiary spouse.

The factors that the court considers are the existing and prospective means of the respective parties, their respective earning capacities, the duration of the marriage, the standard of living of the parties prior to divorce, their conduct insofar as it may be relevant to the break-down of the marriage and any other relevant factor[11]. Re the last two factors, misconduct can be considered by the courts.

The courts have moved away from permanent maintenance (largely due to woman claiming their rightful place in the labour market) and more towards rehabilitative maintenance and a “clean break” between couples[12]. If a person however is unable to enter the job market due to old age or ill health and the marriage was of a long duration, the chances for lifelong maintenance are far greater.

Some remarks on divorce in general:

All marriages, whether civil, same sex or customary union, are subject to some form of marital regime (that is how the assets are treated, usually upon divorce).

The three regimes are in community of property, (the default position in South Africa if you were married without an antenuptial contract), out of community of property (what is mine is mine and what is yours is yours) and out of community of property with the accrual system (a hybrid “of sorts” between the two). Unless a settlement agreement is reached between the parties that determines how the assets upon divorce should be divided, the antenuptial contract and marital regime that it stipulates, will be strictly applied by the courts.

There has been a groundswell of dissatisfaction about this and our courts limited discretion to vary antenuptial contracts, in the interest of justice and equity, and for our matrimonial property system and divorce law to become more progressive in this regard. The courts are slowly starting to follow suit[13] but the Appeal court is somewhat lagging behind.[14]

One of the main grounds of criticism is that the normal rules of contract, most notably pacta servanda sunt, (agreements must be kept) should not be strictly implemented when it comes to antenuptial contracts, for the sake of fairness, equity and justice.

It has been noted the present system of rigid enforcement of antenuptial contracts are a fertile ground for substantive gender discrimination and injustice[15].

It is hoped that in the near future there will be ground breaking development in our law via judgements delivered by our courts that will bring our matrimonial law in line with then Constitution[16] and the Promotion of Equality and Prevention of Unfair Discrimination Act [17].

Refund of Lobola:[18]

A claim for refund of lobola, paid under our Customary Law, has never been tested in our legal system. The Recognition of Customary Marriages[19] Act 120 of 1998 and case law can give an insight into probable legal position though.

In a civil marriage, the man would ask the lady’s father first for her hand in marriage and then propose to her with a wedding ring. We follow the Roman Dutch law, and, in terms of this if the parties get divorced, the man cannot claim back the engagement or wedding ring. The agreement to pay lobola underpins the customary marriage in our customary law, and plays a similar role to that of a wedding ring does in civil marriages, however the lack of a wedding ring does not invalidate a marriage.

There is however a school of thought that there is a case to be made out for the reclamation of the funds, especially if the marriage broke down due to the misconduct of the wife, such as in an instance of her infidelity. It remains to be decided by the court and wil no doubt be in the future.

Legal costs:

Settlement is always cheaper than litigation and better for all involved, especially children.

Even when litigation is necessary a good attorney will settle the issues that can be settled and proceed to litigation on the issues that cannot, thus limiting the time spent in court and wasted costs for clients.

In the past divorces were the domain of the High Courts which involved legal fees for attorneys and Advocates and prohibitive costs. The Regional Courts (Magistrates Court) now have concurrent jurisdiction and many divorces are being brought there in quicker time and thus costing far less.

Unless there are complex issues of law involving vast quantities of money, a competent divorce attorney can bring the matter to trial and argue it himself far quicker for far less than previously.

A spouse that was the home maker and does not have the necessary funds to bring a matter to trial can apply to court for a contribution to costs and interim maintenance from her spouse, (High Court Rule 43 and Regional Court Rule 58), it is however noted that such an award is a contribution and not the entire cost of the proceedings.

Caution should however be taken in selecting an attorney who specialises in this field (divorce and matrimonial law) as these area s have become highly specialised. In the same way as you will not have your dentist, no matter how trusted, perform brain surgery on you, so you should not have a general practitioner attend on your divorce as the negative results can be lifelong, economically and emotionally crushing.

In short, should you become involved in divorce ligation, have a specialist divorce and matrimonial lawyer who can cover all the above bases, attend to your divorce, settle what can be settled and fight on your behalf regarding what cannot and whatever else, know that you are not alone and that with the proper legal assistance there is light at the end of the tunnel, (and it’s not an oncoming train).

Always remember, ignorance of your lawyer (and their competence or not) is no excuse.[20]

 

Short Bio:

Shando Theron then senior partner at Theron’s Divorce & Matrimonial Attorneys in Johannesburg. He can be reached on 082 819 5675 or shando@divlaw.co.za

In his previous incarnation he was an officer in the elite Parachute Battalion.

 

References:

[1] Section 17 of the Children’s Act 38 of 2005

[2] The Constitution of The Republic of South Africa Act no 108 of 1996, section 28(2);

[3] See fn 1, Section 7

[4] Act 99 of 1998, the preamble to said act and Section 15

[5] See fn 4, Section 15(2)

[6] See fn 4 above, Section 3(a)(ii)

[7] See fn 1 ibid

[8] See fn 4 ibid.

[9] Cronje and Heaton (eds) South African Family Law, 2nd Edition, 147 – 156, at 147

[10] Act 70 of 1979, Section 7(2) & (3)

[11] See fn 10 ibid

[12] See fn 9 above, at 149

[13] Bezuidenhout v Bezuidenhout 2003 (6) SA 691 (C))

[14] Bezuidenhout v Bezuidenhout 2005 (2) SA 187 (SCA)

[15] Heaton J: Striving for substantive gender equality in family law: Selected issues; 2005 SAJHR 547 – 574, at 555

[16] See fn 2 above, sections 9 and 39.

[17] Act 4 of 2000.

[18] Baker, P, CapeTownLawyer.co.za lawyer@capetownlawyer.co.za, circa February 2014,

[19] Act 120 0f 1998

[20] The Wizard of Id.

Leave a reply

4 − one =

Copyright © 2018 Bregmans | Designed By Right Click Media | Privacy Policy | Tel: +27 (0)11 646-0335 | E-mail: info@bmalaw.co.za