No winners in joint estate divorce cases
THE modern relationship of people intending to be matrimonial life partners has become complicated and, as a result, its legal consequence is equally complex and complicated.
In these times, it is not only acceptable for people to live together without marrying but also people of the same sex are now allowed to live together and marry.
In South Africa, these complexities are greater, as we have a number of cultures, religious groups and races living side by side and governed by the same law and the same constitution.
Some of the cultures and religious groups allow polygamous marriages and this has proven to be a source of legal uncertainty.
The next series of articles will deal with the legal consequences of these relationships. These will include the rights and responsibilities in respect of children born of these relationships as well as the proprietary and other consequences of marriage.
The most common form of marriage in South Africa is the marriage in Community of Property (COP).
Such a marriage is derived from our common law and effectively means that if two people are legally married then the estates of these persons are joined together to form one joint estate. An estate in this sense means all the property owned by the parties to a marriage. This will include:
All immovable property, for instance, land and buildings and the like.
All movable property, for example, motor vehicles, furniture, jewellery and the like.
Intellectual property, which will include patents and rights to books, magazines and articles.
Cash and money in the bank and stocks.
Other items, personal effects, tools, etc.
In the event of a divorce, each party shall have the right to 50% of the joint estate. This means it must be divided equally between the two parties.
In a number of divorces, parties prolong the litigation purely because they cannot agree on how the joint estate should be divided.
In many cases, litigants spend a substantial amount on legal fees only to settle on the basis that there will be an equal division of the assets at the doorstep of the court.
Our advice to litigants is: “Don’t spend R10 000 on legal fees fighting over a microwave.”
Implicit in this advice is that ultimately the joint estate will be divided into two equal portions. In such divorce cases, there are no winners. The next article deals with when one party is entitled to claim more than half of a joint estate. Tymara Ketusha Samuel of Siven Samuel & Associates.