“One of my clients recently commented that it is exponentially more difficult (and expensive) to get divorced than it was to get married. Notwithstanding the aforestated, generally speaking, divorce proceedings are characterised as highly emotional and volatile.
“If only prospective couples could have had the difficult and crucial conversations prior to the ‘I do’, then the legal consequences of marriage and divorce could have been properly addressed in a registered antenuptial contract and consequently have alleviated the patrimonial consequences of divorce.
Duty of reciprocal support
The legal consequence of all registered marriages in South Africa is that a reciprocal duty to support vests between spouses.
Readers are again reminded that the same duty does not exist where parties decide to live together (cohabitation) as our law does not recognise common law marriages and accordingly the parties are not deemed to be spouses. However, both parents have the duty to support children (proportionally), irrespective of whether they were married or not.
The duty to pay maintenance can furthermore not be excluded in a registered antenuptial contract as accordingly provisions determining same will be void.
Legal consequence of divorce
Parties married in community of property share one estate and on the date of divorce, the consequence of a decree of divorce necessitates the division of the joint estate.
If no antenuptial contract was registered, automatically the marriage will be deemed to be in community of property.
With regard to parties married out of community of property, whether the accrual system is excluded or not, each party has his or her own estate and where property is owned jointly, same will need to be divided between the parties (whether by agreement or by court order).
Needless to say, a registered antenuptial agreement is essential to marriage out of community of property.
Grounds for divorce
The grounds for divorce are that the marriage has irretrievably broken down to such an extent that there is no reasonable prospect of the restoration of a normal marriage relationship between the parties.
The fault principle in divorce litigation has fallen away, and at most might only feature as a factor when the court evaluates the facts in the determination of the patrimonial consequences of the divorce.
Kindly take note that this article is not intended to be a comprehensive discussion on marital regimes.
Tineke van Rooyen is a lawyer at TVR LAW in Jeffreys Bay and can be contacted on 073 044 2155.
– WRITTEN BY TINEKE VAN ROOYEN OF TVR LAW, JEFFREYS BAY
