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February 22, 2020

Issues to consider when contemplating a divorce in South Africa

Deciding to issue divorce proceedings against your spouse is a difficult and emotional decision. Many clients are in the dark as to what needs to be considered when deciding to proceed with a divorce. Below are a few of the main issues to be considered and the most common points of contention between spouses. Hopefully, by understanding what issues may lie ahead, clients may be better prepared to deal with an impending divorce.
1.    Marital regime

The first question is under what marital property regime was a couple married. In South Africa there are 3 types of marital regimes, all with different consequences regarding the couple’s individual or joint property upon the dissolution of their marriage by divorce.

-          The automatic marital property regime in South Africa is ‘in community of property’. Essentially, what this means is that the assets and liabilities of each spouse, obtained before and during the marriage, are put into a hypothetical “pot” and divided equally upon divorce.

-          The second marital property regime is called ‘out of community of property with the operation of the accrual system’. This is where the spouses enter into an antenuptial contract before marriage. This allows spouses to retain their own assets upon divorce, but to share in the gains obtained during the marriage. Each spouse will enter the marriage with a commencement value, and upon divorce, the difference between the net increases in each spouse’s estate during the marriage will be divided equally between the spouses.

-          The final marital property regime is ‘out of community of property excluding the accrual system’. Again, the spouses must enter into an antenuptial contract before marriage, and specifically exclude the accrual system. This is the simplest marital property regime and means that each spouse retains his or her own assets. There is no sharing of property and this system causes the least issues upon dissolution of the marriage.

2.    Parental rights and responsibilities in relation to a child

Section 18 of the Children’s Act 38 of 2005 provides strict guidelines within which children are to be involved in divorce proceedings. There are four main parental responsibilities and rights that all parents of minor children (below the age of 18 years old) may have fully or in some cases, only specifically. The parental responsibilities and rights that a person may have in respect of a child, include the responsibility and right:

2.1.        To care for the child;

2.2.        To maintain contact with the child (one parent to have primary residence of the child and the other to have specified contact to the child);

2.3.        To act as guardian of the child (children do not have legal capacity and therefore both parents are automatic legal guardians of their children and any legal decision regarding the child includes both parent’s consent);

2.4.        To contribute to the maintenance of the child (as one parent may have primary residence, the other must contribute towards maintaining the child’s lifestyle and no parent is exempt from this responsibility no matter what their salary is).

3.    The final issue to be considered when contemplating a divorce is called spousal maintenance. This is maintenance that one spouse pays to the other upon divorce to help that spouse maintain their own lifestyle and/or get back on their feet after moving out, for example. When can a spouse claim spousal maintenance:

3.1.        The relationship between the parties (it’s enough if they are spouses in a same-sex or heterosexual relationship);

3.2.        A need to be supported (for example a spouse being unable to find meaningful employment);

3.3.        Adequate resources on the part of the spouse being called upon to support.

               There are two types of spousal maintenance, namely:

·      Rehabilitative – this is where one spouse pays the other a monthly amount (or one lump sum), which will help maintain that spouse for a fixed period. This can be anywhere from 1 month to 10 years, but the point is, it must be a fixed period.

·      Lifelong – this is self-explanatory and means that one spouse must maintain the other until that spouse’s death or remarriage.

Hopefully, having read the above information and having a brief idea of what issues may arise upon the institution of divorce proceedings, spouses may be better equipped to have meaningful discussions regarding what is to be expected upon their divorce from each other.

What is the effect of divorce on a permanent resident permit?

A client asked: What is the effect of divorce on a permanent resident permit when a US citizen is married to a South African citizen and was granted permanent residency and a SA ID document on the basis of the marriage?

Permanent residence under the spousal category is issued in terms of section 26(b) of the Immigration Act of 2002:

“Subject to section 25 and prescribed requirements, the Director-General may issue a permanent residence permit to a foreigner who has been the spouse of a citizen or permanent resident for five years and the Director-General is satisfied that a good faith spousal relationship exists:  Provided that such permanent residence permit shall lapse if at any time within two years from the issuing of that permanent residence permit the good faith spousal relationship no longer subsists, save for the case of death;”

(My emphasis.)

This is read with regulation 23(6):

“A foreigner contemplated in section 26(b) of the Act who has been issued with a permanent residence permit shall, within the last six months of the second year following the issuing of that permit, avail himself or herself for an interview at any office of the Department.”

In practice however, there is no way to comply with this regulation – I have never heard of any Department of Home Affairs regional office that conducts these interviews.

Section 28(b) dealing with withdrawal of permanent residence:

“The Director-General may withdraw a permanent residence permit if its holder has failed to comply with the terms and conditions of his or her permit;”

In terms of section 26(b) there would be no impact on the permanent residence (and subsequent green ID) if the relationship ended more than two years after the permanent residence was issued.  If it ends within the two year period, either party could inform the Department of Home Affairs, but it is usually the South African citizen / initial permanent residence permit holder spouse that the application had been made under, who attends at a regional office to inform immigration inspectorate of the breakdown of the relationship on affidavit.

Inspectorate will then contact the foreign national to appear before them and the information will be forwarded to the office of the Director-General.  As it is at the Director-General’s discretion, there have been cases where the permanent residence was not withdrawn, despite the end of the relationship, e.g. if there are minor children who would benefit from having the foreign national parent to remain in the country.