Frequently Asked Questions
What effect will my marital regime have on my divorce?
The following marital regimes are recognised in South African Family Law. Feel free to contact us should you still have questions or concerns.
Marriage out of community of property with accrual
Marriage out of community of property with accrual is similar to one without accrual, but any increases or decreases in each partner’s estate are shared. In this marital regime, each partner’s estate is valued at the beginning of the marriage, and again when the marriage ends. This can be complicated and may cause delays, but is often chosen as the fairest solution by partners who have assets before getting married they want to protect, but want to share any value added during the marriage.
The default option: in community of property
If no antenuptial contract was entered into the marriage will automatically be in community of property. This means that both parties are joined into what is called a “common estate”, which is owned equally by both spouses. Everything earned, bought, inherited or acquired in any way during the marriage becomes part of the common or joint estate. Money in either spouse’s bank account, even if it is not a joint account, legally belongs to the joint estate. If one party enters the marriage with significantly more assets than the other, they immediately forfeit ownership of half of everything to the other. This includes all debts incurred by either party in the joint estate. This can be a serious problem in the case of insolvency because no assets are protected and both parties will be deemed insolvent. When the marriage ends in divorce, the entire estate, including debt, is equally divided between the parties.
Out of community of property without accrual
Most modern couples enter the marriage with independent resources and mutual earning capacities and they are increasingly likely to draw up an antenuptial contract prior to the wedding, to protect their individual assets. Marriage in community of property without accrual is like getting married but staying single as far as finances are concerned. Each partner’s estate, all they earnings, everything they have bought, inherited or acquired in any way before, during and after the marriage, as well as the money in their bank accounts, will remain exclusively theirs. Debts incurred by either party are exclusively theirs. Insolvency of one partner does not affect the assets or legal status of the other. The end of a marriage under this regime is financially much faster and simpler than under the other regimes.
The role of the marital regime in divorce proceedings
Matrimonial regimes, or marital property systems, are systems of property ownership between spouses providing for the creation or absence of a marital estate and if created, what properties are included in that estate, how and by whom it is managed, and how it will be divided and inherited at the end of the marriage. Obviously, by the time a couple is considering divorce the marital regime is already in place and it cannot be changed.
There are two main marital regimes, and two options for one of them, resulting in three effective property regimes. They are:
- Marriage In Community of Property
- Marriage Out of Community of Property Without Accrual
- Marriage Out of Community of Property With Accrual
Do I still have to pay Child Maintenance if my former partner is refusing contact with my child?
It is important to understand that the child’s right to maintenance and your right to have contact with your child is two different claims. You cannot default on child maintenance payments if your ex-partner is denying contact with your child. Your experience of your ex-partner and the climate of the separation has no effect on the child’s right to maintenance. You are obliged to pay maintenance in accordance with the court order, even if your ex-partner remarries, is involved in multiple relationships, denies you contact with your child, or has more children at a later stage. You may, however, approach the court to have the current maintenance order adapted.
My ex partner refuses to let me see my child. How do I approach the situation?
The Children’s Act contains provisions to prevent one parent of denying the other their parental rights and responsibilities. Any parent refusing another their rights and responsibilities contrary to a court order or parenting plan is guilty of an offence, and may will be liable upon conviction of a fine or imprisonment not exceeding one year.
Threatening your ex partner with criminal liability might not be the best approach to the situation, as the court will not make an order that will prejudice the best interests of the child. The best response is to consult with your attorney to send a letter to your ex partner, reminding them of your rights and responsibilities as parent of the child and the repercussions of a denial of such.
Can I sign an Ante-Nuptial Agreement after the marriage has been finalised?
By law, you are not allowed to sign an Ante-Nuptial Agreement after marriage. Such a contract will be null and void, and have no legal effect. You may, however, change your matrimonial property regime by registration of a Post-Nuptial Agreement with the permission of the High Court. It is advisable, should you desire to change your matrimonial property regime, to do this as soon as possible after your marriage.
Is it possible for a divorce to go to arbitration, rather than a court trial?
Arbitration can be used for divorce proceedings. While arbitration is similar to a court trial for divorce, except that parties resolve their dispute in private before an Arbitrator, in the form of an Arbitration hearing. Couples who wish to resolve their divorce in private, and at a time that is convenient to all parties. Arbitration is a sound alternative to a court trial, however, it must be noted that an Arbitrator’s Award, in most cases, cannot be appealed.
GEORGE DE BEER