The D Word – Hey Girl, Know your Rights!

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The legalities of divorce.

South Africa is particularly inspirational and ground-breaking in that it strives to provide equal rights for all citizens. We have a Constitution that kicks discrimination to the curb, which is a testament to the laws in our country evolving with the times. But it doesn’t stop there! A healthy democracy that is built on equality, must be open to continuously adapting and ironing out any creases of inequality. And that includes protecting some of the most vulnerable members of South Africa – women.

Keeping in mind that it is women’s month, we will be shining the spotlight on divorces in South Africa, and what women need to know about their rights in order to overcome any barriers to justice.

What do women need to know?

1. Seek legal recourse

You can institute divorce on your own by approaching your local Regional Court of the Magistrate Court. They will provide the necessary forms and give guidance on how to conclude your divorce.

It is, however, advisable to seek the assistance of an attorney with family law experience or to involve a qualified mediator in cases where there are substantial assets, retirement annuities or pension funds as well as children. The attorney will assist with drafting a parenting plan as well as a settlement agreement.

2. Understand the need to get a legal divorce instead of just separating

It’s important for women to know that they will only have access to the fair division of assets and other material resources if the marriage is dissolved in a court of law. If you’d like to ensure that your legal rights are protected, an informal separation is not the way forward, so be sure to make it a legal procedure.

3. Understand your marital regime

There are three types of matrimonial property regimes in South Africa; marriage in community of property; marriage out of community of property without accrual; and marriage out of community of property with the accrual. These regimes are governed in terms of the Matrimonial Property Act 88 of 1984.

  • In community of property: With this agreement, all the assets and debts from before the marriage are shared in a joint estate between both spouses. When couples are married in community of property, their separate estates are combined, and each spouse has the right to dispose of the assets as they wish.
  • Out of community of property without accrual: When couples marry in this system, each spouse keeps a separate estate. Whatever assets and liabilities they individually had before the marriage form part of their separate estates.
  • Out of community of property with accrual: This option stipulates that 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.

4. Spousal maintenance is not a right

Neither spouse has a statutory right to maintenance. The language in the Divorce Act is clearly discretionary and the ex-spouse seeking an award for maintenance has no right as such. The discretionary power of the court to make a maintenance award includes the power to make no award at all. As mentioned, our law favours the ‘clean break’ principle, which basically means that after a divorce the parties should become economically independent of each other as soon as possible.

5. How to set up a parent plan after divorce

When parents get divorced, a clear plan with regard to the daily care and education of their children needs to be submitted to court, as part of their divorce settlement agreement. The ideal starting point for setting up a parenting plan would be based on a rebuttable presumption that unless there is clear danger, equally shared parenting is not only in the best interest of the child but also in the best interest of the whole family.

The Children’s Act stipulates clearly that any dispute around matters which have a direct impact on children, has to be mediated and the courts are starting to pass judgement on legal representatives and parents who fail to do so.

Therefore parents are advised to seek the unbiased facilitation of a reputable mediator to guide them through this process, even when they are not in conflict.

Collaborating in this way affords the best opportunity to meet all the needs of every member of the family who is affected by the divorce and it also allows parents to involve any additional support or expertise that they identify to be necessary.

What should women do if they want to obtain A divorce?

I think the only way to protect themselves is for women to be knowledgeable about their rights. Knowledge is power, and it is important for women not to feel powerless in divorce situations. It’s also crucial to seek a lawyer who is up to date on South African divorce law, to accurately and fairly represent you in the divorce.

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