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Thinking about divorce? Do your homework with this quick guide

Thinking about divorce? Do your homework with this quick guide
Illustration: Vecteezy

What you need to know and do if you are thinking about going down the divorce road.

According to Stats SA, a total of 20,196 divorces were granted in 2022, up 10.9% from the previous year.

Divorce is one of the most traumatic events one can experience, with legal, financial and social ramifications. Here’s a quick guide to what you need to know before you even consider filing for divorce.

Research the laws governing your marriage and potential divorce

“Before you get divorced, it’s essential to know which legal framework you were married under,” family law specialist Amanda Catto advises. “[In other words] whether it is in community of property or out of community of property (with or without accrual) in terms of an antenuptial contract… You might be married in terms of a foreign law (if you were married abroad). If you don’t have a copy of your marriage agreement, you can get it from the Deeds Office or from the notary who notarised your contract.”

In South Africa, there are three different legal marriage contracts:

Community of property

Your marriage is considered to be in community of property if you do not sign a marital contract beforehand. Under this regime, your assets are split 50/50 on divorce.

Antenuptial contract

If you sign an antenuptial contract, this usually means that each spouse retains their own assets on divorce. This means you keep any assets you brought into the marriage, as well as any assets you bought with your money. Your savings are included, so your retirement fund benefits remain your own and are not split on divorce.

Antenuptial contract with accrual

This is essentially a compromise between the above two contracts. You each retain ownership of the assets you brought into the marriage and all assets accumulated during the marriage are split on divorce. This will include your retirement fund benefits. Any bequests or inheritances are automatically excluded from your divorce settlement and remain your own.

Consult a legal expert

Legal representation is not strictly necessary but expert assistance is helpful, since divorce can be complex, says Catto. “You don’t have to use an attorney for a divorce. The lower [magistrates’] courts particularly are geared to assist people through the process and there are sites in South Africa that offer ‘DIY divorces’.

“If you choose to proceed on an unrepresented basis, there are some pitfalls, so it may be best to have at least one consultation with an attorney… to understand your rights. If your partner is not disputing the divorce, it’s good to have an attorney at least check your court documents and any settlement agreement. If the divorce is acrimonious, [consult] family law specialists, as it is a very complex field. It’s the biggest red flag to me that someone plans to be unfair if they tell their spouse not to seek legal assistance or they’ll rescind their offer,” she explains.

Understand the costs

All divorces must be granted by a court order, via a summons, while domestic partnerships can be terminated by agreement. In a contested divorce, a summons will be followed by documents from both parties, referred to as pleadings, which could focus on financial, parental and practical arrangements.

Read more in Daily Maverick: How to recalibrate your finances when going through a divorce

There is no cost difference between seeking a divorce from a lower or a high court, but Catto suggests you may be better off in a high court from a cost perspective if the divorce is acrimonious.

Look at your family’s balance sheet

Kirsten Smit, a Citadel advisory partner, says a good starting point would be a solid understanding of your combined balance sheet – assets and liabilities, what you own, what you owe, and what you earn now and will earn in the future. Consider what you are likely to be entitled to keep and what property may be subject to division.

Take maintenance into account

Child maintenance does not end at age 18, but when the child reaches independence – although adult children cannot abuse this right. “Maintenance will always rest on both parents and be decided in accordance with their means, and increases annually (on an inflation basis). It’s preferable to get a clean break via capital buy-off. If one parent defaults on maintenance, you can get a court order to attach their salary, assets or pension,” says Catto.

Be realistic

Your living expenses are likely to increase during the divorce period. Where two salaries may have worked to cover everything, you may now have to rely on one salary. Running two households is expensive, so make sure you budget for the separation and divorce period and be prepared to downscale your lifestyle.

Prioritise the parenting plan

Last but definitely not least, finalise a parenting plan and try to stick to it unless circumstances change drastically. A parenting plan typically covers guardianship, maintenance and contact arrangements. “Don’t be petty and punitive… Always strive for fair and pragmatic solutions in the long-term interests of the family,” Catto says.

Finally, when you get divorced, you should prioritise updating your will, medical aid, policies and investment strategies, so you can start your new life with a strong financial plan. DM

This story first appeared in our weekly Daily Maverick 168 newspaper, which is available countrywide for R35.

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