In South Africa, when you are married in community of property, your assets and liabilities are automatically owned jointly. This means that when you divorce, the court must divide them between the two parties.
The divorce procedure in community of property is relatively simple and stress-free compared to other methods of dividing property, such as an out-of-community marriage, where a party may have to gather all the necessary documents which prove ownership or co-ownership of all their assets and liabilities.
The following is a brief guide on what the court considers when dividing assets and liabilities during a divorce procedure in-community of property in South Africa:
- The financial needs of both parties post-divorce;
- The standard of living enjoyed by both parties before the divorce took place;
- Any debts incurred during the course of their marriage, together with any tax obligations that either partner may have to pay;
- Any contribution made by either partner towards acquiring any movable or immovable assets together with any contribution made towards increasing the value thereof; and
- How long it will take for each partner to become self-supporting again.
The steps involved in the divorce process are as follows:
The couple should obtain a separation certificate from the court for their marriage to be considered legally separated. This does not need to be done immediately but should be done within three months after you apply for a divorce on your own or after your spouse has filed for divorce on your behalf.
In an application for divorce under section 15(1) (a), (b), (c) or (d), you must state that you have been residing separately from each other without cohabitation for at least one year as at the date of filing by either spouse; or you have been living separate and apart under circumstances which can be regarded as having broken down your marriage; or there is no reasonable likelihood that there will ever again be shared life between both spouses, or because one party has committed adultery or physical violence against another party and such conduct was unreasonable; or because there has been an intolerable behaviour exhibited by either party towards each other which causes the irreconcilable breakdown of their relationship.
Step 1 – The application to the court.
The first step in the divorce procedure is to make an application to the court. This must be done by way of an originating summons and can only be done by the party who wants their marriage to end. Once your application has been granted, you will then be able to obtain a judgment of divorce at a later stage.
Step 2 – Mediation or receiving of documents.
If you can’t agree on the terms of your divorce, the court will ask you to mediate. If that fails, each party is asked to exchange and sign a list of all their assets and liabilities (called an affidavit). The affidavits are then filed with the court, and a date is set for a final hearing.
Step 3 – The settlement agreement.
The next step is to submit a settlement agreement to the court. The settlement agreement is a written agreement between the parties that sets out how they will divide their assets and distribute them after divorce.
The court will not accept your settlement agreement unless it is signed by both parties. Make sure that you read through the document carefully before signing it, as there may be things in there that you are not happy with but do not wish to renegotiate at this stage of proceedings.
Step 4 – Finalising the divorce by way of a Court Order.
Once the court has accepted your application and all other necessary documents have been provided, the court will issue a Court Order. A Court Order is usually sent to both parties by registered mail. The two parties must sign the final court order in front of a commissioner for oaths or another competent person before it can be served on them. Once signed, the final divorce order is then registered at the Office of Deeds as well as with other government departments (e.g., SARS) if any property was transferred during your marriage and/or your children’s birth certificates were amended because their father changed after remarriage.
Divorce in community of property is less complicated. The main reason for this is that there are fewer legal issues that need to be resolved by a court. For example, if you have an out-of-community agreement, you will need to prove that your spouse is at fault, but when you have an in-community agreement, it will be necessary for the court to decide if your marriage should be terminated on the basis that both parties agree on ending their relationship.
Another advantage of having an in-community agreement is that it makes things easier because it gives both partners equal shares in all assets bought during the marriage and any debts incurred during this time period. Scholtz Attorneys’ divorce lawyers in South Africa are specilaists in divorce law, contact us today.