What Is The Divorce Procedure In Community Of Property In South Africa?
Unfortunately, many marriages end in divorce. The time surrounding a divorce can be plagued with uncertainty and disagreements. It is typically a time for the division of assets and when decisions are made about child custody matters. Those married without an antenuptial agreement might wonder how to proceed. So what is the divorce procedure in community of property circumstances in South Africa?
The divorce procedure in community of property cases involves the same process as other marital regimes. Typically, it includes the 50/50 division of assets and liabilities and decisions on child custody matters. A liquidator might be appointed to divide the joint estate if spouses cannot agree.
Before starting to research divorce procedures, it would be a good idea to gain a simple understanding of what it means to be married in community of property. Then you can delve into the different procedures you might need to undertake depending on whether you are going through a contested or uncontested divorce. This knowledge will help you better understand the process and hopefully help you with your divorce planning.
What Does It Mean To Be Married In Community Of Property?
When marrying in community of property, it means that you and your spouse share a joint estate. You will share all of your assets and debts within this estate. There are some exceptions to this rule, including those awarded to one party in a deed of donation.
A deed of donation could include an inheritance whereby the person states in their will that they do not wish the assets to form part of the joint estate. Or when a parent donates a car or house to one of the spouses and makes a condition that they do not wish it to form part of the estate.
This type of marital regime ensures that when you get divorced, all your assets and liabilities, at the date of divorce, will automatically be shared between you and your spouse equally.
What Is The Divorce Procedure In South Africa?
According to the Divorce Act 70 of 1979, you will need to explain why you wish to get a divorce. The courts accept the following reasons:
- An irretrievable breakdown within your marriage.
- Or your spouse is in a mental facility or unconscious for at least six months, and a doctor has stated that they do not believe they will recover.
At this stage, the best suggestion would be to get legal advice on how to continue, especially if significant assets or children are involved. There are many rules involved in the divorce process, and things can get complicated in community of property cases as your assets will need to be divided equally between yourself and your spouse.
When undergoing a divorce procedure in community of property cases, as with other marital regimes, you will need to submit to the courts the following documents:
- The summons – You will need to visit the High Court or the Regional Court of the Magistrate Court, which has authority in your region. You can ask a clerk to help you create a summons that will be issued to your spouse (or the defendant).
- Plaintiff’s (the person applying for the divorce) particulars of claims include the reasons for your divorce, your personal details, and how you wish for your joint estate to be divided between yourself and your spouse.
- Arrangements regarding minor and dependent children, the document containing this information will need to be signed by both parents before a Commissioner of Oaths.
- Copies of your children’s most recent reports
- The deed of settlement – This document will need to be signed by both parties and two witnesses.
Community Of Property Uncontested Divorces
The divorce procedure in community of property situations where the divorce is uncontested follows a relatively simple process. First, as the plaintiff, you must submit the original copies of the summons and the particulars of claims to the relevant sheriff, who will then deliver (serve) them to your spouse (defendant). In uncontested divorces, the defendant agrees to the terms set out in the particulars of claims.
The next step is to go to the court Registrar and request a court date. Only the plaintiff needs to go to court on the day. Ensure that you have the original copy of your marriage certificate with you when you go. It is now up to the judge to decide whether or not they will grant you a divorce based on the information put to them.
If your court date is set at the Regional Court, you have the option of representing yourself, but if it is in the High Court, you will need an attorney to represent you. The High Court typically hears cases where the divorce is complicated or the estate is worth a certain amount of money.
Community Of Property Contested Divorces
The divorce procedure in community of property situations where the defendant chooses to contest the divorce follows a more complicated process. Once the sheriff has delivered the documents to the defendant, they will need to file a notice of intention to defend within ten days. Once the defendant has filed the notice of intention to defend, they will have 20 days to submit a plea and counterclaim.
The defendant will explain whether or not they agree to the divorce within these documents. Once they have submitted these documents, the plaintiff can submit their plea and counterclaim. After this, a pre-trial date will be set.
A pre-trial is the perfect opportunity to resolve any issues concerning the distribution of your assets and custody matters before going to trial before a judge. Only yourself, your spouse, and an attorney will be present for the pre-trial. The best outcome would be to reach an agreement during this step. It will save you a lot of money and time.
If you cannot agree during the pre-trial, you must request a trial date from the Court Registrar. If you go to court, ensure you have all the relevant documentation. You may need witnesses to help your case. The judge will then listen to all the evidence and decide whether or not they will grant you a divorce.
Appointing A Liquidator
In some cases where spouses can not seem to agree on how to split their assets, the court can appoint a liquidator to help them divide their joint estate. The liquidator will act as a neutral, independent party and divide or realise the joint estate assets on its behalf.
Other aspects can come into play regarding the division of assets after the court has granted a divorce. It would be the best option for you to engage the help of an attorney who specialises in divorce procedures to ensure you get the best possible outcome on all sides.
No matter what kind of divorce you are going through, whether it is amicable or not, or whether you have significant assets or debts, this will often be a stressful time and can strain your emotional well-being. Our litigation team at Burnett Attorneys & Notaries is available for consultation. We will strive to provide a tailor-made solution to enable you to navigate this new territory. If you need any advice or support, please don’t hesitate to contact us.