Constructive Dismissal and Internal Procedures in South African Labour Law – Lessons from Maleka and Sally

Employees and employers alike often wrestle with the question of when a resignation becomes a “constructive dismissal” under South African labour law. This article answers four key questions: What is constructive dismissal under South African law? Must employees exhaust internal procedures before claiming constructive dismissal? What did the Constitutional Court decide in Maleka v Boyce? and how did the Labour Court apply these principles in Sally v CPES? By unpacking these recent decisions, the article explains the legal test for constructive dismissal, why the courts insist on using internal remedies, and what practical lessons both workers and businesses should draw from these cases.

Written by Roy Bregman, an admitted attorney with over 51 years’ experience in labour and employment law.

 

Key Takeaways

 

• Constructive dismissal claims will fail where employees resign without first using reasonable internal remedies such as grievance procedures or CCMA processes, unless those remedies would clearly be futile.
• The Labour Court and Constitutional Court both stress that the threshold for “intolerable” working conditions under section 186(1)(e) of the LRA is high and assessed objectively, not based on an employee’s perception.
• Recent cases involving Maleka and Sally underscore that changes to reporting lines or disagreements about accommodation, without more, seldom justify immediate resignation.
• Employers should maintain clear internal procedures and employees should exhaust them before resigning, to avoid costly and unsuccessful litigation.

Understanding Constructive Dismissal and Internal Remedies

What is constructive dismissal under South African Law?

Under section 186(1)(e) of the Labour Relations Act (LRA), a constructive dismissal occurs where an employee resigns because the employer has made continued employment intolerable. The focus is not on whether the employee was unhappy, but whether a reasonable person in the same circumstances would have found the situation so unbearable that resignation was the only option.

Courts have consistently emphasised that this test is objective and the threshold for intolerability is high. Mere unhappiness, perceived loss of status, or conflict with management will not be enough; the employee must show that the employer’s conduct was so severe that no reasonable employee could be expected to stay.

Must employees exhaust internal procedures before claiming constructive dismissal?”

The duty to use internal procedures

A further key principle is that constructive dismissal should be a remedy of last resort. Where reasonable internal procedures exist – such as a grievance process, unfair labour practice proceedings at the CCMA, or other dispute mechanisms – employees are generally required to use them before resigning.

Both the Labour Court and higher courts have indicated that, save in cases where internal remedies would be objectively futile, an employee who resigns prematurely and bypasses available procedures will struggle to prove constructive dismissal. This approach protects both the employer’s right to address issues internally and the broader statutory scheme that favours problem‑solving over litigation.

Against this backdrop, two recent cases – one from the Constitutional Court and one from the Labour Court – reinforce the importance of exhausting internal avenues before walking away.

The Maleka Case: Reporting-Line Changes and Anticipated Intolerability

What did the Constitutional Court decide in Maleka v Boyce?

Facts of the case

In Reynolds Maleka v Timothy Boyce N.O and Others (CCT 175/23) ZACC 4, Mr Maleka had been employed since 2014 as IT Director by Tyco, and was placed at ADT, Tyco’s South African subsidiary. He served on ADT’s executive committee, reporting internationally to Tyco’s global head of IT and locally to ADT’s managing director.

In late 2016, ahead of a planned acquisition of ADT by Fidelity Security Group, ADT announced the appointment of a new financial director, Mr Quinn, who would oversee the IT portfolio. Once the acquisition was completed, this would mean that Maleka would report to Quinn, someone on his own level. Maleka saw this as a demotion which threatened his authority and status and immediately expressed his opposition. He was told the decision was final.

Shortly after the Competition Commission approved the acquisition, Maleka had a brief follow‑up meeting with the managing director, who reiterated that the reporting line decision would stand. The next day, Maleka resigned and later referred a dispute to the CCMA, alleging that he had been constructively dismissed.

Decisions in the CCMA, Labour Court and Labour Appeal Court

The CCMA Commissioner rejected Maleka’s constructive dismissal claim. The Commissioner found that the change in reporting line did not affect his title, salary, responsibilities or his seat on the executive committee and was a reasonable operational response to the pending sale. Crucially, Maleka had not used ADT’s grievance procedure before resigning.

The Labour Court, applying the test of correctness to the Commissioner’s ruling, agreed. It held that without a compelling reason to bypass the grievance process, his failure to use it was fatal to the constructive dismissal claim. The Court further held that the reporting‑line change, in the absence of any change to salary or title, did not render his employment objectively intolerable; his resignation was impulsive and not a last resort.

On appeal, the Labour Appeal Court (LAC) similarly held that Maleka’s resignation was premature. The LAC noted that he could have:

• used ADT’s internal grievance procedure, and/or
• referred unfair labour practice or unfair discrimination disputes to the CCMA before resigning.

His failure to pursue these options meant that intolerability had not yet materialised; it was at most anticipated. The LAC therefore dismissed his appeal.

Constitutional Court majority: high threshold and need to explore remedies

The Constitutional Court’s majority judgment, penned by Seegobin AJ, confirmed these principles. Drawing on established authority, the Court reiterated that constructive dismissal requires proof that the employer made continued employment objectively intolerable and that the threshold for intolerability is high.

The majority held that Maleka’s dissatisfaction stemmed from the change in reporting line, not from any existing state of intolerability. His fears about future marginalisation amounted to anticipated intolerability, which is not sufficient under section 186(1)(e). The Court also stressed that an employee in his position should first explore reasonable alternative remedies before resigning. Because Maleka had not done so and could not show that internal or external remedies would have been futile, his application had no prospects of success and was dismissed.

A strong dissent would have found constructive dismissal on the particular facts, emphasising dignity and the historical context of racial inequality in corporate South Africa. However, for current purposes, the binding majority confirms a strict, remedy‑focused approach.

The Sally Case: Religious Accommodation and the Labour Court’s Approach

How did the Labour Court apply these principles in Sally v CPES?”

Facts and claim

In Sally v CPES (Pty) Ltd t/a Vivo SA (JS419/22) ZALCJHB, Mr Mohamed Sally, a practising Muslim, was employed as a spare parts manager from 7 March 2022. On 10 March, he requested religious accommodation to attend Friday prayers, including the option of unpaid leave. Before CPES could meaningfully respond or implement any solution, Sally resigned the very next day, alleging that his resignation amounted to an automatically unfair constructive dismissal based on religious discrimination.

Labour Court’s decision

The Labour Court dismissed the claim and again underlined the importance of using internal procedures and allowing the employer an opportunity to respond. The Court noted that Sally:

• had not given CPES reasonable time to consider and implement his proposed unpaid‑leave solution; and
• had not exhausted available internal remedies before resigning.

The Court cautioned that constructive dismissal should not be found where an employee fails to use reasonably available internal processes to address their grievance, unless using those processes would objectively be futile. On these facts, CPES had barely been given 24 hours to respond. The situation had not yet become objectively intolerable; instead, resignation was premature.

Conclusion: Practical Lessons for Employers and Employees

The Maleka and Sally decisions deliver a consistent message: constructive dismissal is an exceptional remedy, not a shortcut when employment relationships strain. Employees must:

• distinguish between genuine intolerability and anticipated or perceived harm.
• use internal grievance procedures and statutory remedies where reasonably available; and
• treat resignation as a last resort, only after attempts to resolve the situation have failed or would clearly be futile.

For employers, the cases highlight the value of clear internal policies, accessible grievance mechanisms, and prompt, good‑faith engagement with employees’ concerns – especially around restructurings, reporting‑line changes and religious accommodation.

FAQ

Q1: When will a South African court find that an employee was constructively dismissed?

A: Only when the employer has made continued employment objectively intolerable, and resignation was a last resort after reasonable alternatives, including internal procedures, have been tried or shown to be futile.

Q2: Do I have to use my employer’s grievance procedure before resigning?

A: In almost all cases, yes. Failing to use an available grievance process or CCMA remedies will usually be fatal to a constructive dismissal claim, unless using them would clearly be pointless.

Q3: Is a change in reporting line automatically a demotion or constructive dismissal?

A: No. Courts look at the full picture, including title, pay, responsibilities and context. A change in reporting line alone, without more, rarely makes employment intolerable.

Q4: Can refusal or delay in granting religious accommodation amount to constructive dismissal?

A: Not automatically. The employer must be given a reasonable opportunity to consider the request and explore solutions; immediate resignation without engaging internal processes will usually defeat a claim.

If you are facing changes at work, considering resignation, or dealing with an employee who alleges constructive dismissal, it is crucial to get tailored legal advice before taking the next step. Contact Bregman Moodley Attorneys for practical, strategic guidance on South African labour law, internal procedures and constructive dismissal risks.

 

Failure to Register an Antenuptial Contract: Can One Spouse Force a Change to the Matrimonial Property Regime?

South African law on correcting an unintended matrimonial property regime, section 21 MPA applications, spouse consent, and negligence claims against attorneys. 

Written by Roy Bregman, an admitted attorney with over 51 years' experience in South African family and matrimonial property law.

A client asked: “Can a court correct a matrimonial property regime where both spouses intended to conclude an antenuptial contract, but it was not executed or registered due to attorney negligence—and can one spouse be compelled to participate in such a correction?”

Can You Force Your Spouse to Change Your Matrimonial Property Regime After Attorney Negligence?

Key Takeaways

• South African law allows spouses to correct an unintended matrimonial property regime caused by attorney or notarial negligence, but only with a joint High Court application and no prejudice to creditors.​
• Section 21(1) of the Matrimonial Property Act 88 of 1984 is the primary mechanism to change the matrimonial property system after marriage, and it expressly requires both spouses’ consent.​
• If one spouse refuses to cooperate (for example, because they benefit from being married in community of property), the court will not impose a new regime unilaterally.​
• The aggrieved spouse’s realistic remedy is usually a professional negligence claim against the attorney or notary whose failure caused the wrong matrimonial regime.​

South African Legal Framework on Matrimonial Property Systems

Legal principles: correcting an unintended matrimonial property system

Default regimes and antenuptial contracts

South African law starts from the principle that, absent a valid ANC executed and registered before marriage, spouses are married in community of property by default. Where the parties in fact intended to marry out of community (with or without accrual), but attorney or notarial negligence prevented a valid ANC from coming into effect, the law provides two broad routes to seek correction.​

First, if an ANC was validly executed before the marriage but not registered timeously due to error or oversight, the High Court can authorise condonation of late registration under the Deeds Registries Act, with retrospective effect, provided creditors are notified and not prejudiced. Second, if no valid ANC exists and the parties wish to change the system after marriage, section 21(1) of the Matrimonial Property Act 88 of 1984 permits a joint application to change the matrimonial property regime, again subject to sound reasons and protection of creditors.​

Section 21(1) Matrimonial Property Act: Postnuptial change

Statutory framework: section 21 of the Matrimonial Property Act

Section 21(1) of the Matrimonial Property Act is the central statutory authority for postnuptial changes to the matrimonial property regime. It allows a husband and wife, after their marriage, to jointly apply to the High Court for leave to change their matrimonial property system, provided there are sound reasons, proper notice to creditors, and no prejudice to creditors or third parties.​

Courts have repeatedly used section 21 to give effect to the spouses’ true intention where the wrong regime resulted from mistake or professional negligence. However, the wording “husband and wife may jointly apply” is crucial: the statute provides no basis for a unilateral application by only one spouse to change the regime against the will of the other.​

Case Law on Correcting Unintended Matrimonial Property Regimes

Case law: intention, negligence and postnuptial correction

Applications based on mistake and negligence

Several reported decisions illustrate how the courts have approached these applications. In cases such as Ex parte Oosthuizen, Ex parte Spinazze and Another and Ex parte Burger, the courts granted leave to change the matrimonial property regime where the parties intended to marry out of community but failed to execute or register the ANC correctly. The courts emphasised two key elements: the genuine common intention of both spouses, and the absence of prejudice to creditors.​

Rectification where an ANC exists

Rectification is also available where an ANC exists but does not reflect the spouses’ true intention because of a common mistake. In PV v EV (SCA), the court confirmed that an antenuptial contract, as a written agreement, can be rectified where the written terms do not reflect the parties’ actual agreement, provided sufficient evidence of the common intention is placed before the court. Rectification, however, presupposes a valid ANC; where there is none, spouses must use section 21.​

Must Both Spouses Consent to the Change?

The joint-application requirement: can one spouse be compelled?

Why the court requires a joint application

The decisive issue in the client’s question is whether a husband can compel his wife to join a court application to change the regime where she now benefits from the existing system. Both the condonation route (late registration of a validly executed ANC) and a section 21(1) application are premised on a joint approach by both spouses and on the proposed regime reflecting their shared intentions.​

Because section 21(1) expressly requires that “a husband and wife may jointly apply”, the courts have consistently treated the change of matrimonial regime as a consensual adjustment of the patrimonial consequences of marriage. If the wife refuses to cooperate because she prefers the more favourable consequences of being married in community of property, the husband cannot force her to support the application, and the court will not impose a new regime unilaterally.​

Practical consequences and the husband’s remedy

What if one spouse refuses?

Where one spouse refuses to participate, the marriage remains governed by the existing matrimonial property regime, usually in community of property if no valid ANC was executed and registered. The husband’s frustration with this outcome does not create a power to override his wife’s autonomy or to compel her participation in a joint application.​

Attorney or Notary Negligence: The Claim for Damages

In practice, the aggrieved spouse’s realistic remedy lies in a professional negligence claim against the attorney or notary whose failure to execute or register the ANC properly caused the loss. South African courts have recognised such claims, for example in Van Heerden Brummer Inc v Bath (SCA), where an attorney was sued because an invalid ANC left the client worse off on divorce; the measure of damages is typically the financial difference between the intended regime and the regime that actually applies.​

Conclusion

South African law recognises that attorney or notarial negligence can result in spouses being married under a matrimonial property regime they never intended, and it provides mechanisms to correct this by way of court-approved, postnuptial changes. However, those mechanisms are inherently consensual: both late registration of an ANC and a section 21(1) application to change the matrimonial property system require a joint application by both spouses, and the courts will not impose a new regime against the will of one spouse.​

If a wife is content to remain married in community of property because it benefits her, the husband cannot compel her to support a High Court application to alter the regime, even if the original intention was to marry out of community under an ANC. His primary remedy is instead to explore a professional negligence claim against the practitioner whose failure deprived him of the intended matrimonial protection.​

 

FAQ section

Q1: We intended to marry out of community, but no ANC was signed or registered. Are we married in community of property?
Yes. If no valid ANC was executed and registered before the marriage, the default position in South African law is a marriage in community of property.​

Q2: Can I bring a section 21 application without my spouse’s consent?
No. Section 21(1) of the Matrimonial Property Act requires a joint application by both spouses; the court will not grant relief on a unilateral application.​

Q3: What if my spouse refuses because they benefit from the current regime?
If your spouse refuses to join the application, the existing matrimonial property regime remains in place, even if it was not your original intention.​

Q4: Is there any remedy if the problem was caused by attorney negligence?
Yes. You may have a professional negligence claim against the attorney or notary whose failure to execute or register the ANC caused you financial loss.​

If you and your spouse are married under a regime you never intended because of attorney or notarial negligence, or if your spouse is refusing to cooperate in correcting the position, you should obtain detailed, personalised advice before taking any step. Contact Bregman Moodley Attorneys today to discuss your matrimonial property position, assess potential remedies against negligent practitioners, and explore the best strategy to protect your assets and family.​

Can Your Complex Force You to Use Facial Recognition?

 

Many South Africans are being told they must use facial recognition just to enter their own complexes. But under POPIA, your face and ID are not “just another” data point – they are highly protected information, and estates cannot simply force you into biometrics without a lawful basis and a real choice.

A client recently asked:

“My complex now uses facial recognition at the gate. They want my ID and face on a third‑party system. I’ve said I don’t consent and asked for another way to access my home, but they’re ignoring me. Can they really force me under POPIA?”

Under POPIA, facial recognition is biometric data – special personal information that can only be used on strict legal grounds, with proper safeguards. Consent must be voluntary, informed and specific. It’s hard to call it “voluntary” if the message is effectively: no biometrics, no access to your own home.

Bodies corporate and HOAs must also consider less intrusive options (cards, remotes, PINs) and give clear information about what they collect, where it’s stored, who sees it and for how long.

In practice, we:

• Review the estate’s rules and POPIA documents
• Send a formal objection and demand a reasonable, non‑biometric access method
• If needed, help lodge a complaint with the Information Regulator or approach court

Thinking of scrapping your 13th cheque? A recent Labour Court case is a cautionary tale for employers.

 

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Can employers scrap a 13th cheque? A recent Labour Court ruling warns against unilateral changes to contractual bonuses in South Africa.​

#LabourLawZA #EmploymentContracts #HRCompliance

In Chemical Energy, Paper, Printing, Wood and Allied Workers Union obo Members v Avacare Health Group (Pty) Ltd and Another (C438/2024), the Labour Court found that an employer’s unilateral decision to stop paying a contractual 13th cheque and replace it with a performance‑based bonus amounted to a breach of contract.​

The employer:

• Abolished the 13th cheque and introduced a performance‑linked bonus.
• Offered salary increases to employees who accepted the change and did not challenge it.
• Indicated that strike action against the change would be “ineffective and futile”.​

Employees argued that the 13th cheque was a contractual benefit. The employer maintained it was merely a workplace practice. During the dispute process, the employer eventually conceded that the 13th cheque was in fact a contractual right, and the court ordered payment of the unpaid 13th cheques.​

The court criticised:

• The attempt to mischaracterise a contractual benefit as a mere practice.
• The “stick and carrot” approach of trading salary increases for relinquishing contractual rights, while discouraging collective action.​

Key lessons for employers:

• A 13th cheque is not a statutory requirement in South Africa – but once you include it in an employment contract, it becomes a binding contractual obligation.​
• You cannot unilaterally withdraw or change contractual benefits, even in the name of “modernising” remuneration structures.
• Distinguish carefully between:
• Contractual benefits (e.g. guaranteed bonuses, 13th cheques in the contract), and
• Workplace practices (customs or discretionary benefits not written into the contract).​
• If you need to change contractual benefits:
• Conduct a proper legal and HR review.
• Consult meaningfully with affected employees or unions.
• Obtain agreement to any variation.
• Avoid coercive incentives or threats that may later be viewed as undermining collective bargaining.​

Handled incorrectly, a well‑intentioned incentive scheme can result in findings of breach of contract, reputational damage, and unnecessary litigation.

 

Thinking about divorce in South Africa? Here’s what you need to know

Divorce in South Africa is mainly governed by the Divorce Act 70 of 1979.

If you’re considering divorce, it helps to understand:

 

• On what grounds you can get divorced
• What the court looks at
• What happens to your status, property and finances

 Grounds for divorce

 In South Africa, there are only two legal grounds for divorce:

 

• Irretrievable breakdown of the marriage
• Mental illness or continuous unconsciousness of a spouse

Irretrievable breakdown

Most divorces are granted on this ground.

It means the marriage has broken down so badly that there is no reasonable chance of getting back together. 

The cause of the breakdown is not strictly important, but the court looks at certain facts to decide whether the marriage has indeed broken down, for example:

 

• You and your spouse have not lived together as husband and wife for at least one continuous year.
• Your spouse has committed adultery, and you feel you cannot continue with the marriage.
• Your spouse has been declared a habitual criminal and is serving a sentence.

These are examples, not an exhaustive list. The court can also look at things like:

 

• Refusal of marital privileges (e.g. no physical relationship)
• Serious emotional or physical abuse
• Ongoing conflict and incompatibility
• Even your own adultery
• A clear, unilateral decision by one spouse that the marriage is over

If the court is satisfied that the relationship has broken down irretrievably, it can grant a divorce. 

Mental illness or continuous unconsciousness

In more unusual cases, a divorce can be granted on the ground of a spouse’s mental illness or continuous unconsciousness. 

Mental illness

The court can grant a divorce if:

• Your spouse has been admitted to and detained in a mental institution or similar facility under the relevant mental health laws; and
• They have not been discharged for at least two years before you start the divorce; and
• At least two psychiatrists, appointed by the court, confirm that your spouse is mentally ill and there is no reasonable prospect of recovery. 

Continuous unconsciousness

The court can also grant a divorce if:

• Your spouse is unconscious due to a physical condition, and
• They have been unconscious for at least six months continuously. 

These grounds exist for extreme situations where the spouse is permanently inaccessible, and the marriage cannot function. 

What happens when you get divorced? 

Personal consequences 

Once the court grants a divorce:

• Your marital status changes – you are no longer married to each other.
• You are free to marry again in the future, if you wish. 

Patrimonial (financial and property) consequences

What happens to your assets and finances depends on:

• Your marital property regime (how you were married)
• Whether you married before or after 1 November 1984
• Whether the court grants a forfeiture or redistribution order 

Common regimes include:

• In community of property
• Out of community of property with accrual
• Out of community of property without accrual 

If you married after 1 November 1984 with a standard antenuptial contract (ANC) excluding community, the accrual system often applies. In that case, the difference between the accrual (growth) of your estates during the marriage is shared, usually equally, subject to the rules in your ANC and the Act. 

Redistribution orders (mainly for older “out of community” marriages)

Before 1984, many couples married out of community of property without accrual. In those marriages, one spouse could leave the marriage with far less, even after years of contribution.

To soften this, the law allows a court to make a redistribution order in certain cases. This means the court can order one spouse to transfer assets (or a portion of them) to the other to correct serious inequality. 

When can a redistribution order be considered?

Generally, the court looks for:

• A marriage before 1 November 1984, out of community of property, where community of property, profit and loss and accrual were all excluded in the ANC.
• An application for a redistribution as part of the divorce case.
• The spouse against whom the order is sought has more assets than liabilities.
• The spouse asking for redistribution has contributed (directly or indirectly) to the maintenance or growth of the other spouse’s estate during the marriage (for example, by working, running the household, raising children, supporting a business).
• The court is satisfied that making such an order is just and equitable in the circumstances. 

What does the court consider?

When deciding what to transfer, the court considers:

• The current means and obligations of both parties
• Any donations made between spouses during the marriage
• Any forfeiture orders
• Any other factor the court believes is relevant 

Forfeiture of benefits

A forfeiture order allows the court to say that one spouse must forfeit some or all of the benefits they would otherwise receive from the marriage.

Under section 9 of the Divorce Act, the court can grant a forfeiture order when divorcing on the ground of irretrievable breakdown, but only if one spouse would be unduly benefited compared to the other. 

This can include:

• Sharing in a joint estate (in community of property), or
• Sharing in the accrual of the other spouse’s estate, if you married out of community with accrual after 1 November 1984. 

What does the court look at?

When deciding on forfeiture, the court considers:

• How long the marriage lasted
• The circumstances that caused the breakdown of the marriage
• Any serious misconduct by either spouse
• Whether one spouse will receive an undue benefit if forfeiture is not ordered 

If you want forfeiture, you must:

• Specifically claim it in your divorce papers, and
• Set out the facts you rely on. 

You cannot usually seek forfeiture later – it must be dealt with at the time of the divorce. 

Dissolution of marriage on presumption of death

If a spouse goes missing and is presumed dead, the Dissolution of Marriages on Presumption of Death Act allows the High Court, when it grants an order presuming death, also to order that the marriage is dissolved. 

This is a special situation, but it gives certainty to the remaining spouse. 

How to get started if you are thinking of divorce

For a layperson, the legal detail can be overwhelming. In practice, most people start by:

 

1. Getting clarity on their marital regime (how they are married).
2. Listing assets and debts in both names.
3. Thinking through issues like care of children, maintenance, and where each spouse will live.
4. Consulting an attorney to understand:
• Whether the marriage has legally “broken down”
• What a realistic financial outcome might look like
• How to structure a settlement agreement to avoid a long, expensive trial

Clear, early advice can save time, money and emotional strain. 

FAQS

1. What law governs divorce in South Africa?
   Divorce is mainly governed by the Divorce Act of 1979. It sets out when a court can grant a divorce and what it may order about children, property, and finances.
2. What are the legal grounds for divorce in South Africa?
   There are two grounds: irretrievable breakdown of the marriage, or a spouse’s mental illness or continuous unconsciousness in limited, serious cases.
3. What does “irretrievable breakdown of the marriage” mean?
   It means the relationship is over and there’s no real chance of reconciliation, regardless of who is “at fault”.
4. What does a court look at to decide if the marriage has broken down?
   The court considers the overall picture: time living apart, adultery, abuse, ongoing serious conflict, lack of intimacy, or a clear decision by one spouse that the marriage is over.
5. Can I still get divorced if I was the one who committed adultery?
   Yes. The question is whether the marriage has broken down, not who caused it.
6. When can divorce be granted because of mental illness?
   Only in narrow cases where a spouse has been in a mental health institution for at least two years and specialists confirm there’s no reasonable prospect of recovery.
7. When can divorce be granted because a spouse is unconscious?
   If a spouse has been continuously unconscious (for example, after an accident) for at least six months and the condition is ongoing.
8. What happens to my status once we divorce?
   Once the divorce is granted, you are no longer married to each other, and you are free to marry again.
9. Why does my marital property regime matter?

It determines who owns what and how assets and debts are divided. It depends on whether you are married in community of property, out of community with accrual, or out of community without accrual.

10. What is the difference between “in community” and “out of community”?
    In community: everything (assets and debts) is shared and usually split equally. Out of community: each spouse has a separate estate, with or without sharing the growth (accrual) during the marriage.
11. What is the accrual system?

Each spouse keeps their own estate, but the growth of their estates during the marriage is compared and the spouse whose estate grew more usually shares part of that growth.

12. What is a redistribution order?

In certain older out‑of‑community marriages (mainly before 1 November 1984), the court can order one spouse to transfer assets to the other to correct serious financial unfairness.

13. What does the court consider for a redistribution?
    It looks at both spouses’ financial positions, their direct and indirect contributions (including homemaking and childcare), and whether a redistribution would be fair in all the circumstances.
14. What is forfeiture of benefits?

Forfeiture means a spouse must give up some or all of the benefits they would usually receive from the marriage because it would be unfair for them to keep those benefits.

15. When will a court order forfeiture?

When, considering the length of the marriage, the reasons for the breakdown, and any serious misconduct, one spouse would otherwise receive an unfair or “undue” benefit.

16. What is an “undue benefit”?

It is a benefit that is clearly out of proportion and unfair, for example where a very short marriage would otherwise give one spouse a large financial gain.

17. Can I claim forfeiture after the divorce is final?
    No. Forfeiture must be claimed and decided during the divorce proceedings.
18. What if my spouse is missing and presumed dead?
    You can apply to the High Court for an order presuming death. The court can also declare the marriage dissolved so you are no longer legally married.
19. What first steps should I take if I’m considering divorce?
    Confirm how you are married, list your assets and debts, think about arrangements for children and maintenance, and get legal advice on your rights and options.
20. Why speak to a divorce attorney early?

Early advice helps you understand likely outcomes, avoid costly mistakes, and work towards a practical settlement instead of a long, expensive court battle.