There are three types of marital regimes, namely (a) Marriage in Community of Property ( this also includes Customary Marriages), ( b) Marriage out of Community of Property without accrual, and (c) Marriage out of Community of Property with accrual.

In a marriage in community of property, all the assets that were acquired by either of the spouses before the marriage, and those that they acquire during the course of the marriage, will form part of their joint communal estate; however, there is an exception to this rule. Assets which are inherited by the spouse, and or third-party payment received by the spouse, do not form part of the joint estate.

All the liabilities incurred by the spouse before the commencement of the marriage, and during the course of the marriage. The other spouse is jointly and severally liable to creditors for those debts. A customary marriage that is concluded without an Anti-nuptial contract is considered a marriage in community of property. If an event that one of the spouses becomes insolvent, then the other spouse will also be declared insolvent.

This type of marital regime is a marriage where each spouse maintains separate assets and liabilities from the other spouse. So, if one spouse comes with a million into the marriage, the other spouse would not be entitled to half of this money. Each spouse is liable for his or her own debts. Unlike a marriage in community of property, where creditors seek to declare one of the spouses insolvent, the other spouse is exonerated from such a claim.

At first glance of the wording, one can easily assume that a marriage in community of property with accrual is somewhat the same as a marriage in community of property; however, this is not true.

This type of marital regime, dictates that whatever the spouse had before the marriage will remain to be his/her property ( provided that the anti-nuptial contract records this), and the parties will share whatever has accrued by the spouse, whose estate has grown more than the other spouse. At the conclusion of the marriage, the spouses share the growth of the estate equally; this means the spouse with the smaller estate has a claim against the other for half of the difference between the two accruals. Each spouse is liable for his or her own debts (in theory). In practice, the ‘ accrued estate is calculated by adding all the assets less the liabilities. Whatever is left would be considered the ‘growth’. These calculations, depending on the size of the estate, can get very complex.

Divorce proceedings can take a long time, if they are contested.  The rules of the Court (both the Magistrate Court and the High Court) provide that the spouse may bring an application before the Court requesting an order that the other spouse pays the interim spousal and or children maintenance pending the finalization of the divorce. Our team of legal professionals are skilled in drafting such applications and presenting them at Court. During the course of the proceedings, we will assess the situation and advise whether or not to ask for an interim spousal and or child maintenance.

Legal costs are made of Attorneys’ fees, counsel’s fees ( if instructed), Court Fees, and expert fees. Attorney’s fees, are fees charged for services such as consultations, drafting of documents, negotiations, and representation in Court. These fees are charged per quarter of an hour. Court Fees are fees related to serving and filing of court documents, are usually regarded as disbursements. Expert fees are fees to paid to professionals to assist in the best outcome of your matter, for example, child psychologists, financial evaluators, and or mediators. The list is not exhaustive.

In uncontested divorces, each party would usually pay his or her own legal fees. The same is not necessarily the same for contested divorces. The general rule is that, each party bears the responsibility to pay his or her own legal fees; however, the Court has a wide discretion to deviate from this rule if it deems necessary. A financially disadvantaged spouse may apply for interim maintenance (Rule 43 in the High Court and Rule 58 in the Magistrate’s court) to cover the legal fees and living expenses until the divorce is finalized.

Contested divorce actions cost anything between R 20 000.00 (twenty thousand rand ) to the millions, depending on the nature of the estate, custody, dissolution of the estate, and any issue relating to the minor children ( if any).

One of the most contested issues in divorce proceedings relates to who gets to ‘keep’ the children. When considering this aspect in divorce proceedings, the Court will decide this issue on what would be in the best interest of the minor child or children. In essence, there is no spouse and or parent who has an inherent right to primary care of the minor child. Our Courts over the years have ensured that no parent is preferred over the other unless the circumstances demand otherwise.  Child custody can be categorized into two groups: (a) primary care, is referred to the parent who will reside with the child daily, this parent sees to the daily needs of the child, however, a parent who is awarded primary care bears the responsibility of informing the other parent regarding any material issues regarding the child ( i.e. if the minor child is admitted at hospital the parent who has primary care must inform the other parent as soon as reasonably possible), (b) contact with a child, refers to the non-custodial parent’s rights and privileges, which allows the other parent who does not primary care of the child to see, and spend time with his or her child.

In order to claim child maintenance, the parent demanding this maintenance must first determine the reasonable needs of the child on a monthly basis. There is no specific formula used to determine the needs of the child. No two households are the same. When claiming for maintenance, one has to account for the following monthly expenses (this list is not exhaustive): medical aid, food, toiletries, winter and summer clothes, school fees, transport, and entertainment. Both parents are liable for the costs of maintenance towards the children. Of importance, a parent who earns more than the other parent is most likely to pay more for child maintenance (irrespective of gender).

South African law allows a spouse who institutes divorce proceedings, even if the other spouse lives as an expat overseas. The same would apply if you are a South African citizen living abroad and you want to divorce your spouse who lives in South Africa. In terms of Private International Law and South African Law, a South African Court’s will have jurisdiction ( a legal right to adjudicate the divorce) on the date on which the action is instituted or ordinarily resident in the area of jurisdiction on the date the action is instituted or has been ordinarily resident in the Republic for period of not less than a year immediately before the institution of the divorce proceedings. If the parties to a divorce were married to each other in the  United States of America, and the parties did not conclude an Anti-nuptial contract, this marriage is in terms of the laws of the United States of America. When either of the spouse institutes divorce proceedings whilst residing in South Africa, and the spouse has been in the Republic for more than a year before instituting the divorce action,  South African Court will have jurisdiction to hear the matter, but the laws of the USA will be applied. This is in terms of Private international law.