Going through a divorce is often described as one of the most strenuous processes imaginable. Apart from the legal hurdles involved, one is often also faced with high emotions, disagreements, disappointments and the discomfort caused by the uncertainty of having to adjust to life without the person you had shared so much with. It is recommended that one seeks the assistance of a family counsellor during this stressful time.

This brief post discusses the three main issues that generally cause heartache and worry.

Division of the Joint Estate. Upon the termination of the marriage, the joint estate between the spouses will be divided according to the property regime that governs the marriage between the spouses. There are three matrimonial property regimes in South Africa. (i)Marriage in Community of Property where all the assets owned and liabilities incurred by the spouses before and during the marriage will be jointly owned by the spouses and therefore subject to equal division upon termination of the marriage, unless expressly provided otherwise by an Ante-nuptial contract. The law recognizes some other assets which may not become part of the joint estate such as for example inheritance provided that it is kept separate (ii)Marriage Out of Community of Property without the accrual system where each party will retain assets and losses in their name (iii)Marriage Out of Community of Property with the accrual system whereby the growth in each spouse’s separate estate after getting married is shared and, upon divorce, is measured against one another. The difference between the two in growth is divided into two and the spouse with the lesser growth gets half of the difference. Without entering into a valid Ante-nuptial contract prior to marriage, spouses are automatically married In Community of Property. This means that even debt incurred prior to the marriage by one spouse, also belongs to the other spouse as there is one common estate between the spouses.

Maintenance. Upon termination of the marriage the issue of maintenance may either be settled during the divorce or referred to the Maintenance Court. To the extent of their ability and means, both parents have a duty to support their children for as long as the children are not self-supporting. The daily needs of the children pertaining to medical care, education, housing, clothing, food and social amenities are all summed up by the courts in coming up with appropriate amounts and maintenance measures for the children. Further, upon divorce a spouse may request spousal maintenance from the other spouse. The considerations that the court will look at are summed up in Section 7 (2) of theDivorce Act 70 of 1979. Briefly these relate to the earning capacities of each spouse, their conduct towards the breakdown of the marriage, their ages, the duration of the marriage, the standard of life the parties lived during the marriage as well as their financial needs and obligations. However, spousal maintenance is not granted as easily as in the past.

Access rights to minor children. These can either be agreed upon by the divorcing parties in a settlement agreement or can be mediated upon by the Office of the Family Advocate. They will assist in coming up with a parental plan prescribing access rights to the minor children (usually on alternative weekend basis). Therein, it stipulates which party has the primary residence and guardianship rights over the minor child(ren).