The parent who is not the primary carer is entitled to contact with their children. There therefore needs to be an agreement about when, where and how this parent will have contact with the children. If it is not in the best interests of the children, then the court can restrict contact or allow contact under supervision, eg: complaints that the father is a drug user / alcohol abuser / sex offendor.
A divorce is commenced by the issue of a summons.
The summons tells the defendant that if he/she disputes the plaintiff’s claim and wishes to defend the action, he/she must serve a notice of appearance to defend the claim on the plaintiff or his/her attorney within 10 days (where the parties live in the same jurisdiction) or 21 days (where the parties live in different provinces) after the date of service of the summons upon him/her. The summons also warns the defendant of the consequences if he/she fails to do so, i.e. it may be possible to obtain judgment by default against him/her.
Being married with accrual is in fact the most appropriate and ideal system.
A successful marriage is in fact based on equality and a partnership. Upon dissolution of the marriage, whether it is by death or divorce, the net values of the estates of each spouse must be determined separately and the larger estate must transfer half of the difference to the smaller estate. The accrual system does not apply automatically to all marriages out of community of property.
For the accrual system to apply, the ANC must be drafted in a certain way. The accrual system incorporates a calculation that is applied when the marriage is dissolved by divorce. The spouses will share the assets during the course of their marriage based on a particular calculation when the marriage is terminated.
There are certain assets which will not be taken into account when determining the accrual (and cannot be included in calculation of the the net value of the estate):
The fact that a Trust’s assets are a trust’s assets does not automatically exclude those trust assets from an accrual determination.
The court may pierce the corporate veil of the Trust if the trust is in fact the alter ego of the donor / trustee. This means that the Court can declare that the Trust assets form part of the accrued estate. Where a spouse has transferred assets in his/her name into a trust, in order for the court to take such assets into account, there must be evidence first that the party in question controlled the trust, and second that, but for the trust, he/she would have acquired and owned the assets in his/her own name.
The Pension Funds Amendment Act, 2007, introduced the so-called clean-break principle for the treatment of retirement fund benefits upon the granting of a divorce decree. The Act allows retirement funds to deduct an amount or percentage upon divorce from a member’s benefit and pay it to the non-member spouse or to a retirement fund of his/her choice. The clean-break principle allows a non-member former spouse to access an agreed or court-ordered share of the member spouse’s retirement savings on divorce.
Any pre-determined amount may be paid from the member’s pension fund to a non-member spouse in terms of a divorce order granted under the Divorce Act, irrespective of the date of divorce, but may not be more than 100 per cent of the value of the member’s withdrawal benefit at the date of divorce.
In order for the Pension / Provident fund to make the deduction and payment to the non-member spouse, the fund must be ordered to endorse its records – which can only occur in terms of a Court Order – to such effect and/or to make payment to the non-member spouse. The non-member spouse can elect to receive a cash lump sum or to have the money transferred to an approved pension fund.
The Government Employees Pension Fund (GEPF) was amended to introduce the clean-break principle with effect from 1 April 2012.
In the past, the portion of a member’s pension benefit payable to a former spouse as part of a divorce settlement was only paid when the member spouse left the fund.
This is no longer the case.
The current position is that former spouses will now be able to receive their share of the pension interest within 60 days after the divorce has been granted.
‘Pension interest’ is defined in the Divorce Act for every type of fund except a preservation fund. According to the Pension Funds Act, ‘pension interest’ is:
1. Pension and provident fund – The benefits to which a member would have been entitled to in terms of the rules of the fund if his/her membership had terminated, due to resignation, at the date of the divorce.
2. Retirement annuity- The sum of the member’s contributions to the fund up to the date of divorce plus simple annual interest at the prescribed rate.
3. Preservation fund – The benefit a fund member would receive if his/her membership were notionally to terminate on the date of divorce.
It is possible for the parties to agree to a specific rand value to a non-member spouse instead of a percentage of the pension interest, provided that the amount does not exceed the value of the pension interest.
In terms of the Pension Funds Act, a pension/retirement fund is obliged to give the non-member spouse the right to decide how the pension interest award should be paid out, i.e. as a lump sum in cash or reinvested into another retirement fund. On presentation of a valid divorce order, the fund normally has 45 days to request the non-member spouse to decide how the pension interest due to him/her must be paid. The non-member spouse has 120 days in which to make a decision
Pension interest can be excluded in an ANC. Then the spouse would have no claim to the other spouse’s pension / provident fund at divorce.
Pension interest in a retirement annuity fund is defined in the Divorce Act as ‘the total amount of that party’s contributions to the fund up to the date of divorce, together with a total amount of annual simple interest on those contributions up to that date’. The Pension Fund Act provides that the ‘total amount of annual simple interest payable in terms of the definition may not exceed the fund return on the pension interest assigned to a non-member spouse in terms of a decree granted in terms of the Divorce Act’.
In a preservation fund, if a once-off withdrawal has already been made prior to the divorce, the value of the remaining investment (which will usually be represented by the death or disability benefit) can be used to determine the termination value.
The divorce settlement agreement must clearly state the name of the Pension Fund, the Pension Fund registration number, as well as any other identification numbers or information such as the manager of the Fund for clear identification by the Fund for payout.
The non-member ex-spouse will pay the tax on the pension interest if he/she takes the benefit in cash at his / her own personal tax rate. If it is transferred to another retirement fund, the transfer will be tax-free.
It is best to obtain professional advice on what is the best for you. The pension interest deduction is taxable in the hands of the non-member spouse at their tax rate. It is important that the parties understand in the settlement agreement how the tax issue is to be addressed.
Retirement fund lump sum withdrawal benefits consist of lump sums from pension, pension preservation, provident, provident preservation or retirement annuity funds on withdrawal (including assignment in terms of a divorce order). The taxation of an allocated pension interest is calculated by the Fund themselves by their actuaries and the non-member spouse will receive a tax directive once the Fund has paid over the tax benefit to SARS and the balance will be paid to the non-member spouse. Both the member and the non-member spouse should get professional tax advice, alternatively make enquiries with the Fund Administrators directly on the tax implications.
The law provides a mechanism for interim maintenance pending divorce being finalised. This is a Rule 43 in the High Court and a Rule 58 in the Regional Court. This is supposed to be a quick, effective and cost saving measure to help an applicant.
You can secure the following relief in a Rule 43 / Rule 58 –
• interim care or contact with the child;
• maintenance for the wife and/or children;
• enforcing certain payments, such as for the bond on the matrimonial home, vehicles, school fees, medical aid premiums and even deposits on new accommodation and relocation costs;
• interim contribution towards the costs of the divorce and legal fees; and/or
• an order for delivery of a car, furniture, etc.
Rule 43/58 deals with many of the issues that will ultimately be dealt with in the final divorce action, but is an interim solution.
A rule 43/ Rule 58 application can be brought:
• before issue of the summons;
• simultaneously with the issuing of the summons; or
• after a notice of intention to defend is received.
An applicant is entitled to interim relief depending on the living standards of the parties.
The applicant must show that he/she has insufficient means and that the respondent can afford to meet the amounts being sought.
In a claim towards his/her legal costs, the following principles will apply:
• The test to be applied in considering the amount is that the applicant should be placed in a position to adequately present his/her case.
• The fact that the respondent is wealthy does not entitle the applicant to unlimited spending, there being a difference between what he/she wants and what he/she needs.
• What is ‘adequate’ depends on the nature of the litigation, the scale on which the respondent is litigating and the scale upon which he/she intends to litigate, with due regard being given to the respondent’s financial position.
• The applicant is not entitled to all his/her costs but merely a ‘contribution towards’ them. An applicant may lodge further applications later on in the process for his/her legal costs, including costs for each day of the trial.
• The contribution is not limited to disbursements only and may include reasonable attorneys’ reasonable.
The spouse seeking an interim order is the applicant and must file a notice in terms of the Rule 43/58 and a Founding Affidavit with the court setting out the facts relating to the divorce and why the spouse is of the opinion that he/she is entitled to relief.
The applicant will need certain prescribed documentation to lodge an application for interim relief, including:
• a Notice in terms of Rule 43/58, requesting the respondent to file an opposing affidavit within 10 days;
• an affidavit accompanying the rule 43/58 notice; and
• detailed spread sheet proving income, expenses, assets, etc.
Often a wife may not have access to funds to pay for her own legal costs and to level the playing fields our courts have created a mechanism for a claim for a contribution to legal costs. Rule 43(1) and (6) clearly provides a mechanism whereby a party can claim a contribution to legal costs during the divorce proceedings. An applicant must be put into a position to present his/her case adequately and if one party for example embarked on litigation on a luxurious scale by paying exorbitant amounts to his attorneys a court will assist the other party. ln exercising its discretion in the determination of the amount of the contribution towards costs to be awarded, the court is bound by section 9(1) of the Constitution, Act 108 of 1996, to guarantee both parties the right to equality before the law and equal protection of the law – the equality of arms.
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