By Nabeela Sheik Omar
When spouses are faced with conflict that potentially leads to an irretrievable breakdown of a marriage, they are often overwhelmed by the processes that must be followed to institute divorce proceedings and most importantly, they have unrealistic expectations of a divorce outcome as they are unaware of the laws applicable to specific marital regimes. It is important to have basic knowledge of what a divorce entails and how your specific marital regime will affect the division of assets and patrimonial consequences of your divorce.
If you have a valid civil marriage registered in South Africa, you are required to issue a divorce summons in either a Regional Court or High Court within the area you reside to start the divorce process. The divorce summons is accompanied by what is called a ‘particulars of claim’. The particulars of claim essentially sets out the details of your marriage, the reasons for the breakdown and your claim. The divorce summons is served on your spouse personally by a Sheriff that attends to the area in which you reside. Divorces can either be contested (opposed) or uncontested (unopposed) and this will determine the duration and costs associated with a divorce.
The first important aspect to understand prior to instituting divorce proceedings and which we will focus on in this article is “How does the way I am married affect what I get out of my divorce?”
The answer to that question is decided by the marital regime you are married according to. The marital regime determines how the assets at the time of a divorce are divided and what your benefit or liability is. When married in community of property, the assets of the joint estate will be divided equally after the debts are settled equally. If parties reach agreement as to the assets in the joint asset and how they should be divided, a settlement agreement is drafted recording the agreement. If there is no agreement on how to divide the joint estate the court has the power to appoint a receiver and/ or liquidator to identify and divide the assets equally.
The only time that assets will not be divided equally in an in community of property marriage is if one spouse claims forfeiture of the patrimonial benefits and when the patrimonial benefits of one party be forfeited in favour of the other. A forfeiture of assets must be specifically claimed in a divorce summons and can only be ordered by a court. The court has regard to the duration of the marriage, the circumstances which gave rise to the breakdown of the marriage and any substantial misconduct (eg. contribution to the breakdown of the marriage) by either party. The court needs to be satisfied that if the order for forfeiture is not made the one party will be unduly benefitted.
If you are married out of community of property, excluding the accrual the assets which you have acquired prior to and during the marriage are separate, each party maintains their separate estates at dissolution of the marriage and there is no sharing of assets. Each spouse walks away from the marriage with what they have individually acquired (prior and during the course of the marriage).
The consequences of a divorce when married out of community of property, including the accrual are slightly more complicated. The accrual must be specifically recorded in your ante-nuptial contract and the accrual is a way to ensure that both parties benefit fairly from the assets acquired during the course of the marriage. The term “accrual” refers to the net increase in value of each spouse’s estate since the date of the marriage. In essence, what was yours before the marriage remains yours and what you have earned during the marriage should be shared. The accrual is calculated using a specific calculation and the right to share in the accrual can only be exercised at divorce. Your share of an accrual cannot be transferable or attached by creditors.
There are certain assets which are excluded from the accrual calculation and these are: assets specifically excluded in the ANC, any inheritance received from a spouse by a third party during the marriage, any donation between spouses and any amount that accrued to a spouse from a damages claim. An example of a damages claim is personal injury.
Lastly, Islamic marriages and their applicability in South Africa have recently become controversial. Islamic marriages are concluded by way of a Nikah and are not civil marriages. Islamic marriages are currently not regulated in South African law and therefore, there are no defined patrimonial consequences of the dissolution of such a marriage in legislation. There is currently pending litigation in the South African High Courts to have Islamic marriages regulated and marry the bridge between South African law and Shariah law. Whilst an Islamic marriage is not regulated, it is respected in South Africa and our offices are well- equipped to provide you with all the necessary avenues and remedies available to you for competent advice in respect of the patrimonial consequences of an Islamic marriage, maintenance and consequences regarding minor children.
The attorneys at SLH will be happy to assist you with instituting your divorce action, ensuring that you have a complete understanding of the consequences of your regime and seeing your divorce to finality. We, at SLH Inc, understand that a divorce is one of the most difficult experiences to go through in life and we commit ourselves to dealing with your matter compassionately but also efficiently and practically. We endeavour to make the process as easy as possible for you while ensuring that your best interests are taken into account.
About the author: Nabeela Sheik Omar is Head of the Matrimonial and Family Law Department at SLH Inc.
Contact SLH for a consultation on 011 728 6666.
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