By Emsie Martin
Nobody gets married with the intention to divorce. The hard reality, however, is that 40% of marriages end in the divorce court before the 10th anniversary. Statistics SAs latest figures show that 25 326 divorces were granted in South Africa in 2016. When your marriage has broken down irretrievably or if there is any other reason that made you decide to dissolve your marriage through divorce, it would be advisable to obtain a legal opinion on the matter.
There are a whole number of issues that will have to be addressed:
- custody of the children
- access to such children
- medical expenses and school fees
- maintenance for you, your spouse or for the children, if applicable
- division of the assets according to the asset-division dispensation on which you were married
Get copies of all documents relevant to your legal and financial lives, viz.:
- original ANC
- original marriage certificate
- copies of your and your husband’s IDs
- copies of minor children’s birth certificates
- offers of compromise
- marriage contract
- a list of joint and several assets and liabilities
- proper valuation of all assets
- Change your will.
The two bases for divorce are:
- irretrievable breakdown of the marriage; or
- mental derangement or continuous unconsciousness of a spouse.
- Irretrievable breakdown implies that the spouses in a marriage can no longer live together as husband and wife.
- The marriage relationship must no longer be normal.
- There must be no prospect of the restitution of a normal marital relationship between the spouses.
The consortium principle, which encompasses everything ascribed to the married state such as camaraderie, love, sexual intercourse, etc., must be perused for what is considered to be normal. If such consortium is terminated or interrupted through the action of one of the spouses, it can be said that the relationship is no longer normal.
In order to determine whether the consortium has been seriously impaired or terminated, the court will follow a subjective as well as an objective approach.
Section 4 (3) of the Divorce Act (Act 70 of 1979)
Section 4 (3) of the Divorce Act (Act 70 of 1979) authorises the divorce court to postpone the proceedings in order to give the parties an opportunity to try and reconcile, provided that there is a reasonable possibility that the parties could become reconciled through counselling, treatment or serious reflection.
According to Swartz v Swartz 1984 4 SA 467 (A) 475 the divorce court, in order to determine whether a marriage has reached a point of irretrievable breakdown, will also take into consideration the history of the relationship up to and including the date of the application for divorce as well as the attitude of the parties at the time of the hearing regarding the marriage relationship as determined on the basis of the evidence before the court.
The onus to prove that the marriage has broken down irretrievably rests with the party requesting the divorce. The court must be convinced that the marriage is in such a state that there is no reasonable possibility that the parties will go back to each other, e.g. that one of the spouses has left the other, etc.
Be informed about your antenuptial contract
In community of property
If you are married in community of property, all assets that you collected both before and after the marriage belong equally to both partners because they form part of the joint estate of the antenuptial contract.
Out of community of property
A marriage out of community of property means that all the assets that you had before your marriage belongs to you and are not included in the matrimonial property. After the marriage you have a choice to combine your assets or to continue building separate estates.
Antenuptial contract without accrual
If you have an antenuptial contract without accrual, it means that everything you owned before the marriage as well as property and assets collected during the marriage remain yours.
Antenuptial contract with accrual
An antenuptial contract with accrual means that everything you owned before the marriage remains yours, but that everything you and your spouse collected as assets and property after your marriage must be divided between the spouses.
It is important to note that, even if you are not married but have been with your partner for a number of years, the state does not recognise “common law” or “cohabit” as a legal relationship in terms of South African law. It is therefore imperative that you draw up the necessary contracts and agreements with your partner.
There are many other aspects regarding a divorce and it is therefore advisable to get a competent lawyer for advice and assistance to make sure that all your expectations are addressed and that important aspects are not left out. Be informed.