Before discussing the divorce process, let’s look at a brief explanation of the different types of matrimonial property regimes and the impact these regimes have on divorces.
Types of Matrimonial Property Regimes
There are three types of Matrimonial Property Regimes to choose from in South Africa:
Marriage in community of property – this is where no ante nuptial contract has been entered into and as a result all assets and liabilities of the parties of both parties fall within the joint estate on a 50/50 basis. When this type of marriage is dissolved due to divorce or death, the joint estate will be divided in half with each party being entitled to their half.
Marriage out of community of property, without the application of the accrual system – this is where an antenuptial contract has been entered into without the application of the accrual. This means that each party retains their own estate (assets remain your assets and liabilities remain your liabilities) and you can also contract with the need for consent by your spouse. When the marriage is dissolved there will be no division of any joint estate and there will also be no accrual to be calculated with neither party being entitled to an accrual claim.
However, there has been a recent judgment handed down in the Constitutional Court on the 10th of October 2023, which has declared that Section 7(3)(a) of the Divorce Act is inconsistent with the constitution and invalid to the extent that the provision limits the operation of Section 7(3) of the Divorce Act to marriages out of community of property entered into before the commencement of Matrimonial Property Act.
The Constitutional Court concluded that the differentiation between individuals who entered into a marriage (and an antenuptial agreement) before and after the commencement of the Matrimonial Property Act constitutes unjustifiable and indirect discrimination on the grounds of gender.
Simply put, individuals married out of community of property without the accrual will now be entitled to claim a redistribution of assets despite the content of their signed antenuptial contract.
We should keep in mind that a redistribution claim is not an automatic entitlement and a spouse instituting a Section 7(3) claim will still need to prove their direct or indirect contributions made towards the estate of the other spouse to be successful. The Court hearing such a claim will then have to decide upon not only whether the spouse is entitled to a claim, but also the extent of the claim which may differ greatly from matter to matter.
Marriage out of community of property, with the application of the accrual system – once again an antenuptial contract is entered into between the parties, with the application of the accrual. The parties will retain their separate estates after the marriage. The parties will also be entitled to perform any and all legal actions relating to their separate estates as they deem fit without having to obtain the consent of the other party.
The party with the smaller accrual will have an accrual claim against the party with the larger accrual. The accrual claim is equal to 50% of the difference between the larger accrual and the smaller accrual.
Essentially this means that if both parties A and B commence their marriage on a zero balance and party A’s estate grows by R1,000,000.00 and party B’s by R1,500,000.00. The party A has a 50% claim against the R500,000.00 growth of party B’s estate.
Certain assets are excluded from the accrual calculation (meaning they are not taken into consideration at either the commencement of the marriage or the dissolution thereof). Examples of these assets are:
inheritances, legacies and donations as well as any asset that was obtained due to the possession or prior possession thereof;
assets which are specifically excluded by the Antenuptial Agreement itself, as well as any asset that was obtained due to the possession or prior possession thereof;
damages received, other than damages for patrimonial loss; and
donations between spouses, excluding donations which are made in expectation of death.
What are the different types of divorces?
Type 1: Uncontested divorce
- This is the quickest and least expensive option.
- In an uncontested divorce the spouses work together to agree on the divorce terms. This includes maintenance, how to divide their assets, how their children will be cared for, and other important decisions.
- An impartial attorney can be consulted and appointed by both spouses to take care of their interests and draft the official settlement agreement, which is signed by both spouses and then made an order of the court.
- Uncontested divorce proceedings may be finalized much quicker than contested or mediated divorces and a date may be obtained within a month or two depending on the dates available at the time for hearing of the divorce. Parties must also remember that where children are involved the settlement agreement must first be approved by the family advocates’ office before the settlement agreement can be made an order of court.
Type 2: Mediated divorce
- Mediated divorces cost more and will take longer to finalize.
- In this type of divorce couples who are unable to agree on the terms of the divorce settlement, employ the services of an attorney or professional mediator to help them negotiate and reach an agreement.
- Mediators are impartial trained professionals skilled in helping couples set aside their short-term differences and focus on reaching a reasonable settlement. In most cases mediators are appointed by the attorney who provides legal advice during mediation.
- Once the mediator successfully helps the spouses reach agreement, their attorney or attorneys can draft the official settlement agreement, which is signed by both spouses and then made an order of the court. Once again where children are involved the settlement agreement will first need to be approved or endorsed by the family advocates office.
- Mediation can dramatically reduce the cost of contested divorce proceedings. Mediated divorces are often finalized in three months maybe a little longer depending on the extent of the dispute.
Type 3: Contested divorce
- Contested divorces can drag on for years and are financially taxing.
- Contested divorces occur when spouses cannot agree on the terms and conditions of their divorce. The most common disagreements relate to maintenance, division of assets and parental rights and responsibilities towards the child or children. In some cases, one or both spouses refuse to settle for emotional reasons.
- In a contested divorce both spouses appear in court repeatedly, and the court decides the terms of their divorce. This can result in very high legal costs and may take three years or longer to resolve.
What matters should be taken into consideration when instituting divorce proceedings?
- Pension interests, a non-member spouse married in community of property has a claim to a share of such pension interest, which will either be 50% or as determined by the court through the litigation process alternatively parties may agree that the non-member will not claim a share of the pension.
- Spousal maintenance – whether spousal or rehabilitative maintenance will be payable and in what amount will be dependent on whether the spouse has the ability to support themselves. Rehabilitative maintenance is usually awarded if the court feels that the marriage has had a negative effect on the ability of one person to support themselves, usually the wife, if she has stayed at home to look after children. In this situation, the court will evaluate the length of time it will take for the relevant spouse to gain the skills to re-enter the job market.
- Children - contact and care – which party will have primary care of the children and which party will have reasonable access, maintenance for the children will also need to be considered. Which party will pay what and in what proportion, this will be based on the individual’s financial means.
- Whether a parenting plan should be drawn up setting out amongst other things the care arrangements of the children.
- Family Advocate - The Family Advocate is a state official who assists divorcing parties to reach an agreement on disputed issues, namely care and contact. If they are unable to reach an agreement, the Family Advocate reviews the circumstances in terms of the best interests of the child or children and makes a recommendation to the court with regard to care and contact.
- Division of the estate – for example who keeps which vehicle and on what basis, furniture etc or if multiple properties which property is retained by which spouse or where there is one property, the decision to sell the property and share in the proceeds less the expenses associated with transfer.
What are the steps to be taken in the divorce process?
Divorce process
In South African law, divorce means the legal termination of a marriage by means other than death of a spouse. South African courts encourage parties to reach settlements before the divorce reaches court, especially in cases of couples with minor children. (See types of divorce, above.)
The divorce procedure in South Africa comprises the following steps:
- Arrange a consultation with your divorce attorney. We will ask you questions about your life, to assess if the divorce will be opposed or unopposed by your future ex-spouse.
- Draft a divorce summons – this is best done by specialist divorce attorneys to avoid issues later.
- The summons is issued by the court on behalf of the person launching the divorce action (called the Plaintiff).
- It includes details of both parties, where and when they were married, and what the plaintiff wants the divorce order to determine. This may include details of distribution of wealth and debt, maintenance payments, and issues of child care and contact. If this is not done correctly and does not contain the information as required, this can be costly in time and money.
- The summons is delivered by the Sheriff to the other spouse (called the Defendant).
- The defendant responds to the contents of the divorce summons. This is called a plea.
- Together with the plea, the defendant delivers a counterclaim document, which sets out what the defendant wants the divorce order to determine. (If the defendant does not deliver a plea and counterclaim then the court may, after a set period of time, issue the order of divorce according to the conditions requested in the summons. This is known as an uncontested divorce in South Africa.)
- The plaintiff may now, within a set period of time, deliver to the court a document responding to the defendant’s plea.
- This is called the plaintiff’s plea to defendant’s counterclaim and sets out their response to the defendant’s plea.
- In most cases this is the end of the plea part of the divorce process. These documents are together referred to as the pleadings.
- The plaintiff now applies to the court for a trial date.
- This date varies according to the type and location of the court chosen. If the divorce is filed in the High Court, the court date may be a year or more in the future. Divorce proceedings filed in a Magistrate’s Court receive earlier court dates depending on how busy the court is.
- Under South African law, all documents to be used by either party in a trial must be revealed to the other party before the court date. This is called a discovery process.
- After the pleadings close each party’s divorce lawyer will request the other party to disclose and provide copies of all documents they intend to use to support their arguments in court. These include a variety of financial documents such as bank and credit card statements, share certificates, documents proving ownership of assets or debt and more.
- In some cases, the divorce attorney may have to issue summons to companies or institutions to deliver required documents.
- In some divorces, one party may attempt to hide assets from the court, or even remove documents proving asset ownership from the spouse’s access.
- In cases where the parties have not managed to reach a divorce settlement agreement the divorce will go to trial and the court will decide who gets what.