Matrimonial Property Systems
Marriage in community of property:
In terms of this matrimonial property system couples will share all assets. Spouses are equal and each spouse owns 50% of the assets. Each spouse is also liable for 50% of the debt incurred.
Marriage out of community of property:
In terms of this matrimonial property system, each spouse owns assets which are registered in their names. Each spouse is also liable for the debt they incur.
Marriage out of community of property with the accrual system:
All assets registered to each spouse, prior to the marriage, will remain the property of the respective spouses. All assets which were obtained during the marriage will be seen as the communal property of the spouses. Each spouse is liable for their own debt incurred.
When a marriage breaks down, it can be very traumatising. A marriage can only be dissolved in a court, therefore an attorney is required to present a divorce matter to court.
The High Court has jurisdiction to dissolve a marriage, however there is also a Divorce Court available under the Regional Court.
Clients may have never been to a court before, and this process can be unnerving. It is also a very emotional process and therefore it is good to have an attorney by your side, to guide you, in terms of the law. People sometimes make emotional choices during a divorce, and therefore it is important to have the guidance of an attorney.
The divorce process:
Upon the first consultation, all the clients’ rights will be explained, in terms of their matrimonial property system. The attorney will determine if there are grounds for divorce, or if the marriage can still be salvaged. In certain instances, the attorney may suggest that a couple go for marriage counselling. In the instance of abuse, the attorney will never advise the spouse to rather attend counselling, before contemplating a divorce.
A summons will be issued, and must be personally served on the defendant (the spouse from whom the plaintiff seeks a divorce). The defendant may also collect the summons from the sheriff’s office, should this be agreed on.
Thereafter, the defendant may enter into an appearance to defend, a notice which the defendant will send to the attorney, stating that he / she will defend the matter.
A settlement agreement may be reached, and the matter in such an instance, may be set down for a court date, in which instance, the settlement agreement will be made an order of court.
A settlement must first be attempted. The court will not look at a matter, unless the parties attempted to settle. Should the matter not be settled, the court will rule a suitable outcome in terms of law.
Minor Children & the Divorce Process
In terms of the Children’s Act, parents have equal parental rights and responsibilities, in respect of the minor children, born from the marriage.
A child has the right to be in contact with both his / her parents and a child have the right to see both of his / her parents. A child will stay with one parent, and will be as per the Act, in the care of one of his / her parents, but the other parent may have contact with the child / children. The contact is not limited to, the word as we know it. The contact a child is entitled to with a parent, are by visiting a parent, by having contact with the parent on a regular basis, telephonic contact, contact per e-mail, whatsapp etc. The child may stay with a parent, over a weekend, or over a holiday.
The parents can determine a schedule for the contact one parent can have with the child. The contact a parent may have with the child is not limitless, but it does not need to be limited to a five minute conversation per day. The best interest of the child should always be considered.
A divorce is also traumatising for a child, and as much as the parents may not wish to see one another, the children still need both their parents.
In certain circumstances, a parent may only have supervised contact with the child.
In the instance where minor children are involved in a divorce, the Deed of Settlement must also be sent to the Family Advocate. Should there be a dispute between the parents regarding the care and contact of a child, the Family Advocate will investigate the matter.
Couples Living Together
It is important to note that couples who live together do not automatically obtain rights in terms of the law, based on their arrangement to live together.
When living together, it is important to enter into an agreement, to stipulate the arrangement between the parties.
Also it is very important to note that should one partner die, the other one does not inherit any assets, in terms of their arrangement to live together.
Should a partner die, without a will, the assets will be distributed in terms of Intestate Succession, in terms whereof the partner’s parents will inherit assets or the partner’s child. (Depending on the circumstances, but mainly close family will inherit assets.) Couples who live together, cannot inherit from their partners in terms of Intestate Succession.
Should you be in a relationship and you are living with your partner, it is important to have a valid will.
Another scenario is where partners incur debt for one another. Say for instance, A take out a personal loan for B, A will always be liable for the debt, if the debt is registered to A’s name. Should B die, A cannot recover the money from B’s estate. A will also be liable for the debt, in the instance where A & B break up. The debt is always A’s responsibility. Therefore a contract is necessary between the parties, to determine the process and the distribution of assets, should the parties break up.
To determine if a person can claim maintenance, one needs to determine if there is a legal obligation upon a person to provide maintenance for the other person.
Couples living together:
In the instance where couples live together, one partner cannot claim maintenance from the other partner, as there is no legal obligation on either partners to pay maintenance towards each other.
Should a couple live together and they have a child together, the child has a right to maintenance. The parents must reach an agreement in respect of the amount payable towards the child for maintenance.
Children born out of wedlock:
A mother may claim maintenance from the biological father of a child born out of wedlock, for reasonable cost to contribute to the upbringing of a child.
The father has parental rights and responsibilities in respect of a child born out of wedlock, if the father had lived with the mother, at the time of the birth of the child. The court will allow a father to have contact with the child, should the father pay maintenance for a reasonable period of time and should the father show interest in the child, and take up his responsibilities. To pay maintenance a father shows that he is contributing to the child and have an interest in the child.
Breakdown of a marriage:
Minor Children – minor children are entitled to maintenance from a parent. One parent may claim maintenance on behalf of the minor child.
Maintenance for spouses are not definite, and the decision to grant maintenance for a spouse, will rest entirely on the circumstances.
The maintenance will not be for an indefinite period of time towards a spouse. Should a spouse still be young and have a degree, the other spouse will not be liable to pay maintenance towards the spouse. The parties may agree that maintenance will be paid towards the spouse for a certain period of time, if a spouse was dependent on the other spouse.
As stipulated above, maintenance towards a spouse, will rest on the circumstances of each individual case.