Is Divorce on the Cards?

Is divorce on the cards is it really broken?  That ugly word “DIVORCE” rear’s its head. Has the man or woman that you fell in love with disappointed you?  Many a time we are unable to escape the feeling fact that there is no point of reconciliation in sight.  You have reached the breaking point. 

Divorces is something many married couples do not expect, but circumstances of life bring them full circle to this unfortunate destination and couples once in love are now in a battle for assets, children and what is rightfully theirs or not. 

Did you get married in community of property or out of community of property (with or without accrual), civil or customary marriage?  Do not despair with the right assistance you can come out respected and with your dignity intact.  

Some pointers to take into consideration prior to marriage are the following: 

• Discuss your financial status and circumstances;
• Find that common understanding go for counseling prior to marriage;
• Draft and file an ante-nuptial contract even though it might cost you now, however it may save you headaches in the future should this unfortunate thing called Divorce happen to you;
• Create a Trust prior to marriage and place your assets into the Trust to save guard your assets from creditors;

The above mentioned points helps when this unexpected thing called Divorce hits you if implemented prior to marriage. 

Have you considered alternative dispute resolution - Mediation prior to Divorce? The benefits of mediation are that it can help to iron out issues prior to Divorce if divorce  is unavoidable.  In certain Divorce matters mediation is a prerequisite as required by the courts where children are involved. Use a professional mediator,  trusted by both parties, who is qualified to assist with your dispute to reach a desired outcome. 

Some marriages can be saved so remember the following. 

• Mediation is less costly;
• Differences can be easily resolved with a mediator;
• Compliance is required in certain instances as per the provisions of the regulations promulgated in terms of the Act on Mediation in Certain Divorce Matters, no 24 of 1987 where children are involved.

If Divorce is ultimately unavoidable the Plaintiff must proof that the marriage has irretrievably broken down in the case of Schwartz v Schwartz 1984 (4) SA 467 (A), the court was clear in its approach.  The parties will be guided by section 4(2) or section 5 of the Divorce Act 70 of 1979.

The patrimonial consequences of Divorce based on the different marriage regimes are explained herein below: 

Consequences of Divorce when married in community of property for example are the following, but not limited to: 

• The division of the joint estate 50/50 in some instances the plaintiff may request total or partial forfeiture of assets and this may not be easily granted (one must proof); 
• Redistribution of assets;
• In instances where directed by a Will the exclusions of inheritance, donations etc.;
• The sharing of pension fund benefit or interest;
• Spousal maintenance where the other spouse is not able to maintenance themselves.

 Consequences of Divorce when marriage is out of community of property with accrual system is that: 

• The spouses share in the growth of each other’s estate;
• Spouses do not share each other’s assets prior to marriage.

Consequences of Divorce when marriage is out of community of property without accrual system is that the spouses have no right to share in any part of one another’s estate.  The spouse with a weaker financial position upon the dissolution of the marriage will be prejudices in this instance. Speak to us and let us help you through it.

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