SOUTH AFRICA Law and Practice Contributed by: Beverley Clark, Jana van Breda, Elmarie Erasmus and Jessica Clark, Clarks Attorneys
2. Financial Proceedings 2.1 Choice of Jurisdiction Jurisdiction in Financial Proceedings
see 1.1 Grounds, Timeline, Service and Pro- cess . During a divorce action, a party may request an interim court order for the following by launching an application in terms of Rule 43 of the Uniform Rules of Court: • maintenance (for themselves and/or the chil - dren); • contact arrangements with 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 divi - sion of assets is which matrimonial property regime governs the proprietary consequences of the parties’ marriage. 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 par - ties, unless a forfeiture order is made in limited circumstances. Where the parties have a South African pre - nuptial contract out of community of property incorporating the accrual system, the party whose estate has accrued (grown) less during the marriage compared to other spouse’s estate has a claim to half the difference in the spouses’ respective accruals (unless forfeiture is ordered in limited circumstances).
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 cas - es, by order of court. For details on jurisdiction, please see 1.2 Choice of Jurisdiction . Challenging Jurisdiction Jurisdiction in divorce proceedings can be con - tested if the requirements outlined in Section 2(1) of the Divorce Act are not met. For further infor - mation, see 1.2 Choice of Jurisdiction . 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 another court). For further details, please see 1.2 Choice of Jurisdiction . Financial Claims After a Foreign Divorce In South Africa, there is no mechanism for ini - tiating financial claims after a foreign divorce (akin to English 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, 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 within the country’s borders. 2.2 Service and Process As outlined in 2.1 Choice of Jurisdiction , South African courts address financial claims as part of the divorce action. For additional details, please
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