The Need for New Legislation and/or Divorce Mediation to Counter Some Commonly Experienced Problems with the Division of Assets upon Divorce

• Jurisdiction: South Africa
• Pages: 225-240
• Author: Madelene de Jong
• Citation: (2012) 23 Stell LR 225
• Date: 16 August 2019
• Published date: 16 August 2019

225

THE NEED FOR NEW LEGISLATION AND/OR

DIVORCE MEDIATION TO COUNTER SOME

COMMONLY EXPERIENCED PROBLEMS WITH

THE DIVISION OF ASSETS UPON DIVORCE

Madelene de Jong

BLC LLM LLD

Professor, University of South Africa

1 Introduction

In terms of t he Matri monial Prop erty Act 88 of 1984, the Recognition

of Customary Marriages Act 120 of 19981 and the Civil Union Act 17 of

2006, there are three general ly applicable matrimon ial property systems i n

South Af rica, namely univer sal community of property or in community of

property, complete separation of property or out of community of property

and the accrual system. With regard to civil marriages and civil unions, the

specic matrimonial proper ty system selected by spouses upon the conclusion

of their marriage or union principally determines t he effect of t heir divorce

on the division of their propert y.2 With regard t o customary marriages, the

matrimonial p roperty system selected by the part ies is less important and the

court’s view of what is equitable and just is decisive in determin ing how the

parties’ assets wil l be divided.3 Although our law provides clear rules and

instruct ions regarding the division of the parties’ assets upon divorce, there

are certain difculties and practical problems which are often experienced

and which make this aspect of divorce one of the thorniest issues to resolve in

divorce litigation.

In t his article the relevant law will be set out rst. This will be followed

by a discussion of the difculties and/or prac tical problems a nd the imp act

they have. T hese problems relate to the postponement of patrimonial claims

or the na lisation thereof to a dat e after the divorce orde r, unce rtainty about

the extent of the parties’ assets and the dissipation of such assets. Lastly,

possible solutions to t he problems or practical problems will be exa mined.

These solutions relate to the acceleration of the effective date for determi ning

patrimonial clai ms and the use of mediation in divorce matters.

1 Only as far as monogamo us customary ma rriages are co ncerned

2 J Heaton South Africa n Family Law 3 ed (2010) 125

3 According to Gumede v Pre sident of the Republic of Sou th Africa 2009 3 SA 152 (CC) and s 8(4)(a) of the

Recognition of C ustomary Mar riages Act

(2012) 23 Stell LR 225

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2 The division of assets upon divorce

2 1 Universal community of property

Where the parties are marr ied in com munity of property in terms of the

Marriage Act 25 of 1961 or the Civil Union Act, the balance of their joint

estate, after all liabilities have been paid, must be d ivided equally between

them upon divorce,4 unless a forfeiture order is granted aga inst one of the

parties5 or an adjustment needs to be effected in favour of one of them.6

Where the parties cannot agree on the man ner in which the joint estate is to

be divided, a prayer for the appointment of a receiver or liquidator to divide

the joint estate may be included in the divorce summons or, as happ ens more

frequently i n practice, the parties may appr oach the court after the g ranting

of t he divorce order unde r a separate application for the appoi ntment of a

receiver or liquidator and possibly again for fur ther directions in the course

of such liquidation.7 In these circumstances the actual division of the joint

estate is postponed to a later stage after the divorce order has been granted and

other ancillar y matters such as mai ntenance for the spouses and t he interests

of children have been decided.

Where the parties are marr ied in com munity of property in terms of the

Recognition of Customary Mar riages Act the joint estate need not necessarily

be divided equally bet ween the parties as in ter ms of the decision of the

Constitutional Cou rt in Gumede v President of the Republic of Sou th Afric a,8

the power of the cour t to redistribute assets equitably upon divorce under

section 8(4)(a) of the Recognition of C ustomary Marriages Act applies to all

customary ma rriages.

2 2 Complete separation of property

Where the parties are married out of com munity of proper ty in ter ms

of the Marriage Act, it is necessary to dist inguish between civil mar riages

concluded pr ior to the commencement of the Matri monial Property Act on

1 November 19849 and those concluded after this date. I n terms of section

7(3) of the Divorce Act 70 of 1979, where the parties m arried each other with

complete separation of property before 1 November 198410 and the parties

did not reach an agreement concer ning the division of t heir assets, the pa rty

with the smaller estate may request a redistribution ord er against the other

party up on divorce. Such an order will only be granted if the rst-mentioned

spouse contributed dire ctly or indire ctly to the mainten ance or increa se of the

other spouse’s estate during the subsistence of the mar riage and the court is

4 Heaton SA Family Law 66

5 In terms of s 9 of the Divorce Ac t 70 of 1979

6 In terms of s 15(9)(b) of the Matrim onial Propert y Act

7 PA van Niekerk A Practical Guid e to Patrimonial Lit igation in Divorce Act ions (RS 10 2008) 3–3-3– 4

8 2009 3 SA 152 (CC)

9 Or prior to the commencement of the Mar riage and Matrimon ial Property Law Amend ment Act 3 of 1988

on 2 Decemb er 1988 where the m arriage was concluded in te rms of s 22(6) of the Black Adminis tration

Act 38 of 1927

10 Or 2 Decembe r 1988

226 STELL LR 2012 2

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