MARRIAGE AND IT’S LEGAL CONSEQUENCES 

So you are getting married! This is probably the most important decision you will ever make and the Legal consequences that flow out of it require careful consideration.

An important aspect that both parties will need to consider is which matrimonial property system is suitable to govern the marriage. There are 3 forms of matrimonial property systems available in terms of South African law, i.e. in community of property and out of community of property (without accrual) and out of community of property (with accrual). Most have probably heard these phrases but don’t really understand its implications.

Getting married in community of property entails that the husband and wife become tied co – owners of all the assets and liabilities they have at the time of their marriage as well as of all the assets and liabilities they acquire during their marriage. Upon marriage the separate estates of the husband and wife are automatically merged into one joint estate for the duration of their marriage. If the marriage is terminated by the death of one of the spouses the surviving spouse immediately gets half of the joint estate as a result of his or her ownership thereof. In the event of divorce, the estate similarly gets divided into equal half shares.

Marriages concluded in South Africa are automatically deemed to be in community of property unless the parties agree to enter into an Antenuptial Contract in which case the marriage will be out of community of property (either with or without the accrual system).

The essence of the accrual system is that the spouses share equally what they build up during the marriage to the exclusion of both parties individual estates prior to the marriage. In a marriage out of community of property without accrual on the other hand, ”what’s yours is yours, and what’s mine is mine”, there is no sharing.

Should you decide to get married out of community of property, either with or without the accrual system, you will need to sign an antenuptial contract prepared by your attorney prior to your marriage.

The above briefly sets out the matrimonial property systems (and the consequences of each system) available to parties who wish to get married but is in no way intended to be comprehensive and complete advise of the consequences of choosing any particular system, and we strongly advise that you consult our offices to advise you of all the possiblities and the most suitable option for your personal circumstances. For detailed up to date legal advice on your specific situation and to set up an appointment, contact us.

DIVORCE 

Divorce has profound financial and emotional consequences for those involved and what we have found in practice is that clients generally are in such a fragile state of mind and emotional turmoil during this period of time that they often need empathy, but most importantly they need sound objective legal advice and assistance. Whatever is discussed with our offices is held in the strictest of confidence.

Divorce encompasses many issues such as custody and access of minor children, maintenance, and the division of property.

When a client approaches us to institute divorce proceedings or defend a divorce action, our first priority is to make the client feel at ease. We advise our clients that we are aware of the fact that he / she is going through a difficult period, and that we are there to guide, assist and prevent a lot of the tediousness and financial drain that is associated with a divorce.

Divorces generally fall into two categories :

The uncontested divorce which also includes the situation where parties have reached a settlement agreement on all issues.

The contested divorce where parties are disputing issues such as custody, maintenance and access . This process is clearly more complex and is a longer process.

Each matter will obviously differ in complexity and our fee is dependant upon the time utilized to finalize each individual matter.

To prevent clients from having to incur unnecessary legal costs ,we try to reach settlement, where possible, between the parties. We try to narrow down the issues that are usually in dispute and if possible, a settlement agreement is then drawn up reflecting both parties wishes and this is made on order of court. The court procedure that follows can be finalized within a month, obviously being dependant on the court roll, This is done either at the Central Divorce Court or the High Court, depending on the client’s request. The Central Divorce Court can be cheaper but can take longer to finalise.

Once the divorce is granted, parties can resume back to their lives as painlessly and quickly as possible.

Unfortunately, as we find most often in practice, parties are emotional and have personal clashes and a settlement cannot always be reached initially. This is obviously a longer process, however what we advise our clients is to apply for interim relief regarding maintenance, custody, access etc , so that parties are not frustrated by the long process.

A divorce that is not properly handled from the outset can have disastrous consequences. If you are in the process of seeking divorce, we would strongly advise that you seek legal assistance from the beginning. We have considerable experience in divorce matters and strive to finalise the matter as quickly and painlessly as possible whilst at all times, keeping our clients best interests in mind.

For detailed up to date legal advice on your specific situation and to set up an appointment,

Scenario dealt with by our offices