Tag Archives: married

How to get divorced if it’s your only option

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B1If a married couple has decided on getting divorced, the process may seem daunting and uncomfortable. However, it can be done efficiently, but there may still be a lot of emotional difficulty involved. It’s important to note that divorce is a last resort in a marriage. If it’s a civil marriage, it needs to be dissolved by a court, and like a court case, good grounds for the divorce have to be given. Divorce isn’t a do-it-yourself matter.

What reasons are good reasons?

  1. Firstly, and most importantly, you have to be absolutely certain that divorce is the only option for you and your spouse. This is because you would have to prove to a court that you and your spouse can’t live together anymore and there is no possibility of reconciliation or for you two to love one another again. An unconsciousness or mentally ill spouse, for example, could also be a valid reason for divorce.
  2. Other forms of proof or grounds needed for a divorce are evidence that you and your spouse haven’t been living together for a very long period of time, one of the partner’s cheated, one partner left or that there was abuse involved in the relationship, such as physical abuse.

Steps to take

  1. The first step is to prepare a summons for a court. Going through a Family Court will be cheaper than a High Court. The summons would include details such as who will have custody of the children and how the other parent will see the children, if there are children involved. Other details would include maintenance and how property will be split.
  2. You can consult an attorney beforehand to help you with the divorce summons and the court proceedings. The Sheriff of the Court will serve the summons to the other spouse or ‘defendant’. In some cases, the defendant may decide to oppose the summons, in which case their attorney will send back a plea (answer to the summons).
  3. The two parties may try reach a settlement agreement before the hearing. Regardless of whether or not the they have reached an agreement the case will still be heard in a court before a decree of divorce is issued. As mentioned earlier, divorce has to go through a court.
  4. After the summons has been submitted to the court a hearing date will be set. A divorce order will be granted after the judge at the hearing has settled everything and confirmed what has been presented as grounds for the divorce.

References

  • Anderson, AM. Dodd, A. Roos, MC. 2012. “Everyone’s Guide to South African Law. Third Edition”. Zebra Press.
  • Westerncape.gov.za. Western Cape Government. Getting Divorced Page. [online] Available at: https://www.westerncape.gov.za/service/getting-divorced/ [Accessed 25/05/2016].

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Antenuptial contracts: With or without the accrual system?

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B4If you don’t have an ANC, you are automatically married in community of property. This means that there is one estate between a husband and a wife. Everything is shared equally between spouses, which includes debts. However, with an antenuptial contract, the estates of each spouse remain separate. The difference comes with the addition of the accrual system.

What is an antenuptial contract?

An ANC determines whether a marriage will be out of community of property with/without the accrual system. It must be signed by the persons entering into a marriage, two witnesses and a notary public, and it must be registered in the Deeds Registries office within the prescribed time period.

What is the accrual system?

The accrual system is a formula that is used to calculate how much the spouse with the larger estate must pay the smaller estate if the marriage comes to an end through death or divorce. Only property acquired during the marriage can be considered when calculating the accrual.

  • If there is no accrual system, then the spouses have their own estates which contain property and debts acquired prior to and during the marriage – nothing is shared.
  • The underlying philosophy of the accrual system is that each spouse is entitled to take out the asset value that he or she brought into the marriage, and then they share what they have built up together.
  • The accrual system only applies if the marriage ends – either by divorce or death. You cannot claim your share of the joint estate while you’re still married.

Whether or not you decide to include the accrual system in your antenuptial contract depends on the couple. Some may see the relevance while others do not.

It’s important that both of you consult the lawyer who’s drawing up the ANC because both spouses need to be fully aware of the consequences. It’s also important to see someone who’s neutral, and who can mediate what goes into your ANC, because emotions can cloud your judgment, and it can be a stressful negotiation if one spouse has a lot of assets and the other doesn’t, for example.

References:

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)