Divorce In South Africa
Nozipho Mvulane
Maintenance pending divorce proceedings
South African law recognises spousal support. Maintenance can be in the form of spousal and/or maintenance for the children. Where a divorce is protracted and/or not amicable, a party may apply for an interim maintenance order pending the finalisation of the divorce.
Maintenance orders during and after a divorce
Where parties agree on what maintenance will be paid, they may conclude an agreement to that effect. These agreements may be made an order of court.
Where there is no maintenance agreement, a party may apply to the courts for an order of maintenance. Before granting an order, the court will consider:
- the existing or prospective means of each of the parties,
- their respective earning capacities,
- financial needs and obligations,
- the age of each of the parties,
- the duration of the marriage,
- the standard of living of the parties prior to the divorce,
- their conduct in so far as it may be relevant to the break-down of the marriage, and
- any other factor which in the opinion of the court should be considered.
The court may make an order in respect of the payment of maintenance by the one party to the other for any period until the death or remarriage of the party in whose favour the order is given, whichever event may first occur.
The distribution of the pension funds
Where the parties are married in community of property, and where the parties are now in the process of getting a divorce, the party that has a pension fund, may be liable for 50 per cent of the pension fund to their spouse.
Parties married in community of property share all debts and assets. These also goes to the pension fund. It is important that a party specifically state that they would like the pension fund to be divided during and after the divorce. Where a party has failed to do so, they may be unable to obtain the proceeds of the pension fund.
Pension funds will require a court order before they will administer the fund before:
- retirement
- retrenchment
- withdrawal.
Without these court order, the pension fund is unable to divide and administer the fund.
For any further information and assistance, please feel free to contact Rajaram Mvulane Attorneys at info@rajarammvulane.co.za
