SOUTH AFRICA Law and Practice Contributed by: Beverley Clark, Jana van Breda, Elmarie Erasmus and Lauren Christie, Clarks Attorneys
proprietary consequences of the marriage are gov ‑ erned by the laws of the husband’s domicile at the time the marriage was concluded. This principle will likely be overturned if an appropriate case tests the constitutional validity of the principle. Residence refers to where an individual ordinarily lives, and is one of the elements used to determine jurisdiction. In order to be domiciled in a place, a per ‑ son must be ordinarily resident there and intend to remain there indefinitely. Nationality refers to the legal belonging to a nation state. However, it does not impact jurisdiction in South African divorce cases if legal requirements are met. In South African divorce cases, all financial claims between the parties are resolved as part of the divorce action. Financial claims are not dealt with separately except in certain rare cases, by order of court. For details on jurisdiction, please see 1.2 Choice of Juris- diction in Divorce Proceedings . Challenging Jurisdiction Jurisdiction in divorce proceedings can be contested if the requirements outlined in Section 2 (1) of the Divorce Act are not met. For further information, see 1.2 Choice of Jurisdiction in Divorce Proceedings . Staying Financial Proceedings South African courts have discretionary authority to suspend ongoing proceedings before them (for instance, if the matter is being dealt with before anoth ‑ er court). For further details, please see 1.2 Choice of Jurisdiction in Divorce Proceedings . Financial Claims After a Foreign Divorce In South Africa, there is no mechanism for initiating financial claims after a foreign divorce (akin to Eng ‑ lish Part III proceedings), unless a particular term in a foreign order needs to be recognised and enforced within the country, or if there are allegations of fraud, 2. Financial Proceedings 2.1 Choice of Jurisdiction in Financial Proceedings Jurisdiction in Financial Proceedings
mistake or undue influence (ie, common law grounds for setting aside an agreement). However, claims for child maintenance or a variation of spousal mainte ‑ nance may be pursued in South Africa following a foreign divorce, as the courts have jurisdiction over any child or maintenance recipient within the country’s borders. 2.2 Service and Process in Financial Proceedings As outlined in 2.1 Choice of Jurisdiction in Financial Proceedings , South African courts address financial claims as part of the divorce action. For additional details, please see 1.1 Grounds, Timeline, Service and Process . During a divorce action, a party may request an interim court order for the following by launching an applica ‑ tion in terms of Rule 43 of the Uniform Rules of Court: • maintenance (for themselves and/or the children); • care and contact arrangements in respect of the children; or • a contribution towards their legal costs. 2.3 Division of Assets Court’s Approach to Division of Assets The first consideration when determining a division of assets is which matrimonial property regime governs the proprietary consequences of the parties’ mar ‑ riage. In South Africa, the default matrimonial property regime (ie, in the absence of a prenuptial contract) is currently a universal community of property. This does not apply to Islamic marriages, in which there is instead a right to an equitable redistribution of assets. In a marriage in community of property, the net joint estate (which includes all assets in both parties’ name, including premarital assets) is automatically divided equally between the parties, unless a forfeiture and/ or adjustment order is made in limited circumstances. Where the parties have a South African prenuptial contract out of community of property incorporat ‑ ing the accrual system, the party whose estate has accrued (grown) less during the marriage compared to the other spouse’s estate has a claim to half the
213 CHAMBERS.COM
Powered by FlippingBook