Divorce in South Africa
- Division of property at divorce
- Grounds for divorce in South Africa
- Irretrievable breakdown
- Mental illness or continuous unconsciousness
The divorce process in South Africa is relatively straightforward, yet the financial and emotional consequences can be profound, especially since most divorces are normally lodged in the High Court, where the costs to litigate are extremely high. The other harsh reality is that the High Courts in South Africa have overly burdened court rolls, and parties normally have to wait a long time for their divorce matter to go to trial when their divorce is contested. The backlog in cases was somewhat lessened when the Regional Courts Amendment Act came into effect in 2010 to amend the Magistrates’ Courts Act, 1944, so as to allow regional divisions of the magistrates’ courts to also deal with divorce cases.
In South Africa, the marital regime of the parties determines how the assets will be divided upon dissolution of the marriage, the assets being those at the time of the divorce.
In South Africa, we have a ‘no fault’ system of divorce, meaning that a divorce will be granted if one of the parties believes that there has been an ‘irretrievable breakdown of the marriage relationship’ and that there are no reasonable prospects of restoring it. Therefore, a marriage can be dissolved even if one of the parties does not wish to get divorced.
Civil marriages, civil unions and those religious marriages conducted by registered marriage officers can only be dissolved by order of the court. The spouse wishing to end the marriage must issue a summons against the other spouse, stating that the relationship has broken down, that there is no reasonable prospect of restoring the relationship and which matrimonial property regime governs the marriage. The summons must make provision for the division of the estate, either stating that the parties have entered into a prior agreement or asking the court to divide the joint estate or enforce the provisions of the ANC. Parties must also set out what the arrangements are with regards to any children born or adopted during the marriage.
Division of property at divorce
The parties may also enter into a settlement agreement, referred to as a consent paper, which will regulate the proprietary issues flowing from the termination of their marriage. The parties have full contractual freedom to either apply the matrimonial property regime applicable to their marriage or to draw up a settlement agreement that they find better suited to their specific circumstances. The settlement agreement will be made an order of the court when the decree of divorce is granted.
The consequences of divorce when married in community of property
Upon divorce, the assets of the joint estate as at the date of divorce will be divided equally between the parties, unless a spouse claims forfeiture and the court grants such a forfeiture order. A forfeiture order cannot be granted automatically and must be specifically requested in the summons.
In terms of the Act, the court has discretion when granting a divorce on grounds of irretrievable breakdown for a marriage in community of property to order that the patrimonial benefits of one party be forfeited in favour of the other. A gift received during the marriage does not fall within the assets that a party can forfeit and a spouse cannot forfeit assets that he/she brought into the joint estate.
When spouses are married in community of property, their assets are tied up in the joint estate and, when a court grants a decree of divorce, the assets must be divided. Where the spouses agree on a division of the joint estate, a settlement agreement may be drafted to be incorporated in the decree of divorce and made an order of the court. Where spouses do not reach an agreement on how to divide their joint estate (as often happens), the court has the power to appoint a receiver or liquidator to realise and divide the assets of the joint estate on its behalf.
Where one spouse is acting in a negligent or reckless manner and alienates assets of the joint estate pending divorce, the other spouse may lodge an application to the court to suspend his/her spouse’s capacity over the joint estate. When the court grants such an order, the spouse who brought the application may then control the estate without the other’s consent.
Marriages out of community of property without the accrual
In this system, when couples marry each spouse keeps a separate estate and whatever assets and liabilities they individually had before the marriage form part of their separate estates. Furthermore, assets and liabilities acquired by each during the marriage also fall within their separate estates. This system gives each spouse absolute independence of contractual capacity and protects each spouse’s estate against claims by the other spouse’s creditors.
A marriage is out of community of property if it falls within one of the following categories:
- the parties entered into a valid ANC prior to their marriage that excludes community of property;
- the parties changed their marital regime by way of a court application from in community of property to out of community of property;
- the parties are black South Africans who married prior to 2 December 1988 without entering into an ANC; or
- the legal system of the country in which the husband was domiciled at the time of the marriage dictates that the parties will be married out of community of property.
Before 1 November 1984
Marriages out of community of property concluded before 1 November 1984 are based on the principle that each spouse has his/her own separate estate. Prior to 1984, spouses either entered into in community of property or out of community of property marriages. The accrual system only came into operation on 1 November 1984.
The consequences of divorce when married out of community of property before 1 November 1984
A ‘redistribution of assets’ section was introduced in the Divorce Act to assist spouses who married out of community of property prior to the enactment of the Matrimonial Property Act 88 of 1984. Although this section may only apply to a relatively small number of marriages, it is important to a particularly vulnerable class of women, namely older women who are less likely to find employment upon divorce and who do not qualify for either child-support grants (as their children would be older) or state pensions.
This reforming and remedial measure applies to marriages out of community of property entered into between whites, coloureds and Asians before 1 November 1984, and to black people married out of community of property in terms of the old Black Administration Act 38 of 1927, prior to the commencement of the Marriage and Matrimonial Property Law Amendment Act 3 of 1988. It was introduced to redress the financial imbalance invariably suffered by the wife on termination of the marriage by divorce.
In the absence of a divorce settlement agreement between the spouses, they retain their own separate estates and there is no sharing of assets on divorce, unless the court granting the decree of divorce orders a redistribution of assets between the parties in terms of Section 7(3) of the Divorce Act. A pension interest forms part of the spouse’s estate and will form part of the assets if redistribution is ordered. The parties may also agree to share the pension interest.
The court will not grant a redistribution order unless it is satisfied that it isequitable and just to do so. Apart from contributions made by the party concerned, the court will also take into account, among other things, the existing meansand obligationsof bothparties. The Act sets out two requirements that must be met if the court is to consider granting a redistribution order:
- the spouse seeking the order must have contributed directly or indirectly to the maintenance or the increase of the other spouse’s estate during the marriage; and
- the court must be satisfied that by reason of such a contribution, it would be equitable and just to make a redistribution order.
Although the law allows either spouse to apply for a redistribution order, in practice this section has largely been used by women. In past cases, the courts have
- specifically considered the historical gender imbalance that made it more difficult for women to access the labour market;
- acknowledged that wives’ household duties should not be viewed as of less value than the employment duties of the husband;
- noted that the Act is sufficiently worded to cover any contribution a spouse makes, including the ordinary duties of a wife; and
- found that it is not always necessary for an applicant to show which assets he/she contributed to, but merely to prove that a contribution was made to the other spouse’s estate.
The court is thus enjoined to apply discretion, justice and equityin coming to the assistance of the financially disadvantaged spouse.
The consequences of divorce when married out of community of property without the accrual after 1 November 1984
In a marriage out of community of property without the accrual contracted after 1 November 1984, there can be no claim for a transfer of assets. The argument is that there are now three matrimonial property regimes to choose from, and if the parties willingly decided to marry out of community of property and without the accrual system, one of the parties cannot later request a redistribution of assets. In such a regime, upon divorce, each party will retain their separate estates, i.e. what they had upon marriage and including all growth to the separate estate that occurred during the marriage, minus any losses that may have been sustained. For example, if the husband came into the marriage with R10 000, he would leave with R10 000 + profits ˗ losses. The only claim a spouse may institute would be for spousal maintenance.
The consequences of divorce when married out of community of property with the accrual
Accrual is a way to ensure that both spouses in a marriage gain a fair share of the estate once the marriage comes to an end. The accrual system does not apply automatically to all marriages out of community of property. For the accrual system to apply, the ANC must be drafted in a certain way. The accrual system incorporates a calculation that is applied when the marriage is dissolved by divorce. The spouses will share the assets during the course of their marriage based on a particular calculation when the marriage is terminated.
The term ‘accrual’ is used to denote the net increase in value of a spouse’s estate since the date of marriage. In other words, what was yours before the marriage remains yours, and what you have earned during the marriage belongs to both of you. Because the right to share in accrual is exercisable only upon dissolution of the marriage, such a right is not transferable and cannot be attached by creditors during the subsistence of the marriage.
The following assets are not taken into account when determining the accrual (are not included in the net value of the estate):
- Any asset excluded from the accrual system under the ANC, as well as any other asset that the spouse acquired by virtue of his/her possession or former possession of such asset.
- Any inheritance, legacy, trust or donation received by a spouse during the marriage from any third party, as well as any other asset that the spouse has acquired by virtue of his/her possession or former possession of the inheritance, legacy, trust or donation, unless the spouses have agreed otherwise in their ANC or the testator/trix or donor has stipulated otherwise.
- Any donation between the spouses.
- Any amount that accrued to a spouse by way of damages (e.g. slander), other than damages for patrimonial loss or the proceeds of an insurance policy in respect of a dread disease.
The mere fact that the assets of a trust are vested in the trustee does not per se exclude them from consideration when determining what must be taken into account when making a redistribution order or considering an accrual claim. Where a spouse has transferred assets in his/her name into a trust, in order for the court to take such assets into account, there must be evidence first that the party in question controlled the trust, and second that, but for the trust, he/she would have acquired and owned the assets in his/her own name.
Commencement values and accruals
Where parties wish to enter into an ANC with the accrual system, they must make sure that the commencement values of their respective estates (i.e. how much their estates are worth at the time of marriage) have been verified and accepted by both parties. It often happens in divorce matters that one party will allege that the other’s commencement value was inflated or completely inaccurate.
Upon the dissolution of the marriage by divorce, the net estate value (assets less liabilities less excluded assets and/or commencement values) of each estate is determined separately. The larger estate must then transfer half of the difference to the smaller estate. Putting it another way, the smaller estate must claim for an amount equal to half of the difference between the accruals of the respective estates. The right to share in the accrual only commences upon dissolution of the marriage by divorce.
The commencement value to be subtracted from the current value of the estate must be adjusted with the consumer price index (CPI) to make provision for any change in the value of money. To calculate the adjustment, go to www.statssa.gov.za and click on ‘Historical CPI’ and then on ‘Key indicators’. The factor by which the commencement value must be multiplied to get to the adapted value is calculated by dividing the value for the month of the dissolution of the marriage by the value for the month in which the parties were married.
Mr and Mrs Cruise were married in May 1990, and divorced in March 2012. In May 1990, Mr Cruise had a commencement value of R10 000. According to the CPI table:
May 1990 = 26.1
March 2012 = 120.9
Thus: 120.9 ÷ 26.1 = 4.6321
This adapted commencement value will be deducted from Mr Cruise’s assets.
Determine the each estate’s accrual as follows:
- Draft a list of all the assets, such as immovable property, furniture, vehicles, pension interest, annuities, policies, investments, bank accounts and interests such as shares and loan accounts in companies/partnerships/trusts or any other form of business, etc. obtained during the marriage at the present day values.
- Deduct the assets that were excluded in the ANC, as well as any other assets acquired by virtue of the possession, or former possession, of the excluded assets.Deduct inheritances, legacies or donations, as well as any other asset acquired by virtue of the possession, or former possession, of the inheritances, legacies or donations.
- Deduct any debts and liabilities.
- Deduct the commencement value, as stated in the ANC and adjusted by CPI.
- The net result will be the accrual in the estate.
Grounds for divorce in South Africa
A marriage may be dissolved by a court on the following grounds:
- the irretrievable breakdown of the marriage; or
- the mental illness, or the continuous unconsciousness, of a party to the marriage.
A court may grant a decree of divorce on the grounds of the irretrievable breakdown of the marriage if the court is satisfied that the marriage relationship between the parties to the marriage has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marital relationship between them.
Divorce Act 70 of 1979 lays down the circumstances that a court may accept as evidence of the irretrievable breakdown of a marriage:
- The parties have not lived together as husband and wife for a continued period of at least one year immediately prior to the date issuing summons for divorce.
- The defendant has committed adultery and the plaintiff finds it irreconcilable with a continued marriage relationship.
- The defendant was declared a habitual criminal and is undergoing imprisonment.
The court still has discretion not to grant a divorce order, and may postpone the proceedings or dismiss the claim if it appears to the court that there is a reasonable possibility that the parties may reconcile through counselling. If reconciliation is unsuccessful after a few months, the parties may proceed with the same summons. The summons will usually contain the averment that further counselling and/or treatment will not lead to any reconciliation. A court must, therefore, be satisfied that the marriage is really broken down and that there is no possibility of the continuation of a normal marriage.
Where the parties reconcile and live together again after the summons was issued and served, it does not necessarily end the divorce proceedings. If, however, the reconciliation is unsuccessful after a few months, the parties may proceed with the same summons.
It is extremely important to make sure that the summons is withdrawn formally if you do decide to reconcile. Withdrawal of the summons is formally affected when the plaintiff serves a document referred to as a notice of withdrawal of the summons on the defendant or his/her attorney. If this is not done, a divorce order may be obtained by default without the defendant being aware of it. If a divorce is obtained in this manner, the aggrieved party may approach the court to set aside the order.
Since the present law on divorce is no longer based on the principle of fault, defences like insanity or the plaintiff’s own adultery are no longer valid defences. Therefore, if a divorce is instituted on account of an irretrievable breakdown, there is in fact no defence to prevent the divorce from proceeding. But if the court finds that there is a reasonable possibility of reconciliation, it may postpone the proceedings in order that the parties attempt reconciliation; this, however, is not a defence, but merely amounts to a postponement.
Mental illness or continuous unconsciousness
A court may grant a decree of divorce on the grounds of the mental illness of the defendant if the court is satisfied that the defendant:
- has been admitted as a patient to an institution in terms of the reception order;
- is being detained as a state patient at an institution or other place specified by the Minister of Correctional Services; or
- is being detained as a mentally ill convicted prisoner at an institution.
A divorce order may also be granted if the defendant has, for a continuous period of at least two years immediately prior to the institution of the divorce action, not been discharged unconditionally as such a patient, state patient or mentally ill prisoner; and if the court has heard evidence from at least two psychiatrists, one of whom must have been appointed by the court, that the defendant is mentally ill and that there is no reasonable prospect that he/she will be cured of his/her mental illness.
Continuous unconsciousnessA court may grant a decree of divorce on the grounds that the defendant is, by reason of a physical disorder, in a state of continuous unconsciousness, if it is satisfied that:
- the defendant’s unconsciousness has lasted for a continuous period of at least six months immediately prior to the institution of the divorce action; and
- after having heard evidence from at least two medical practitioners, one of whom must be a neurologist or a neurosurgeon appointed by the court, there is no reasonable prospect that the defendant will regain consciousness.