Divorce: What You Need to Know

Before You Begin: Reflection and Reconciliation

Divorce is one of the most significant decisions a person can make. Before initiating proceedings, it is important to reflect carefully on whether the marriage has truly broken down irretrievably. South African law recognises the irretrievable breakdown of the marriage relationship as the primary ground for divorce under the Divorce Act 70 of 1979.

Consider whether reconciliation is possible. Many couples benefit from counselling or mediation before making a final decision. If reconciliation is not possible, it is advisable to approach the divorce process in a constructive and informed manner, particularly where children are involved.

Settlement Agreements and Unopposed Divorce

Where both parties agree on the terms of the divorce, they can enter into a settlement agreement that covers the division of assets, maintenance, and arrangements for minor children. An unopposed divorce, where both parties consent to the terms, is significantly faster, less expensive, and less emotionally taxing than a contested divorce. The settlement agreement is made an order of court, giving it the same legal force as a court judgment.

11 Key Questions to Discuss with Your Legal Practitioner

1. Were you married in community of property?

If you were married in community of property (without an antenuptial contract), all assets and liabilities acquired during the marriage form part of a joint estate. Upon divorce, the joint estate is divided equally between the parties, regardless of who acquired or accumulated the assets. This includes immovable property, vehicles, investments, pension funds, and debts.

2. Do you have an antenuptial contract?

An antenuptial contract (ANC) is entered into before the marriage and determines the matrimonial property regime. If you have an ANC, the terms of that contract will govern how assets are divided upon divorce. It is essential to locate and review the original antenuptial contract, as its terms may differ from what you remember or assume.

3. Does the accrual system apply?

If you were married out of community of property with the accrual system, each spouse retains their own estate, but upon divorce, the spouse whose estate has shown a smaller accrual (growth) during the marriage is entitled to claim half of the difference in the accrual of the two estates. This system is designed to ensure that both spouses benefit from the wealth accumulated during the marriage.

4. How will assets be divided?

The division of assets depends on the matrimonial property regime. In community of property marriages, assets are divided equally. With the accrual system, the accrual claim is calculated. Without accrual, each spouse retains their own assets. Regardless of the regime, the parties can agree on a different division in their settlement agreement, which will be made an order of court.

5. Will there be spousal maintenance?

Spousal maintenance (also known as alimony) is not automatically awarded. The court considers factors such as the existing and prospective means of each party, their earning capacity, financial needs and obligations, the age of each party, the duration of the marriage, the standard of living during the marriage, and any contributions made by the parties. Maintenance can be paid as a lump sum or in periodic payments, and can be for a fixed period or indefinitely.

6. What will happen to the minor children?

The best interests of the children are the paramount consideration in any divorce involving minor children. The court must be satisfied that proper arrangements have been made for the care, contact, and maintenance of the children before it will grant the divorce. A parenting plan, drawn up by the parties or with the assistance of a family advocate, sets out the practical arrangements for the children.

7. Where will the children reside?

The question of primary residency (formerly known as custody) must be addressed. The children may reside primarily with one parent, with the other parent having specified contact time, or the parents may share residency on a more equal basis. The arrangement must serve the best interests of the children, taking into account factors such as stability, schooling, and the children's relationship with each parent.

8. What contact arrangements will be made?

Contact (formerly known as access or visitation) arrangements should be detailed and practical. They should address weekday and weekend contact, school holidays, public holidays, birthdays, and special occasions. Clear arrangements reduce the potential for conflict and provide children with certainty and stability.

9. Have the children's views been considered?

The Children's Act 38 of 2005 provides that a child of sufficient maturity and understanding has the right to express views on matters affecting them. The court or the Family Advocate may interview the children to ascertain their preferences, although these preferences are one factor among many and are not determinative.

10. What contributions did each party make?

In determining the division of assets and maintenance, the court considers both financial and non-financial contributions. A spouse who stayed at home to care for children and manage the household is recognised as having made a valuable contribution to the marriage, even if they did not earn an income.

11. Who will bear the legal costs?

Legal costs in divorce proceedings can be significant. In an unopposed divorce, costs are relatively modest. In a contested divorce, costs can escalate rapidly. The parties may agree on how costs will be shared, or the court may make a costs order. It is important to discuss the likely costs with your legal practitioner at the outset and to manage expectations accordingly.

Conclusion

Divorce is a complex process with significant legal, financial, and emotional implications. Being well-informed and properly advised can make a meaningful difference in the outcome. If you are contemplating or facing divorce, it is essential to consult with an experienced family law practitioner who can guide you through the process and protect your interests and those of your children.