So…What About Gay Divorce?

The birth of the Civil Union Act No. 17 of 2006 (“the Civil Union Act”) granted the long-awaited right of people in same sex relationships in South Africa to enter into civil unions (referred to as marriages or civil partnerships depending on what the couple themselves choose) which entitle these couples to enjoy the same rights and legal consequences as parties to any traditional heterosexual marriage.

Although not the most romantic topic to discuss when planning a wedding, the matrimonial property regime that the happy couple choses prior to their union will have a material impact upon them when the union is ultimately dissolved through death or divorce.

The provisions of the Matrimonial Property Act No. 88 of 1984 (which applies equally to civil unions as it does to heterosexual marriages) provides that parties may enter into their marriage in community of property (where all assets and liabilities are pooled and shared equally), out of community of property, without the application of the accrual system (where each spouse retains his/her owns assets and liabilities and has no claim to share in the other spouse’s estate), or out of community of property with the application of the accrual system (which allows for spouses to retain their own separate estates but which provides for a sharing of the growth in their respective estates upon the dissolution of the marriage).

If the couple wishes their union to be entered into in community of property, they need not sign any antenuptial contract, as this is the so called “default” matrimonial property regime which applies in terms of South African law.

However, if couples wish to exclude community of property and loss and conclude a marriage out of community of property, they must enter into an antenuptial contract prior to concluding their civil union. The antenuptial contract will expressly stipulate that the parties will retain their separate estates and will also determine whether or not the accrual system will apply to their union and to what extent.

Just like any traditional heterosexual marriage, a civil union can only be terminated by death or divorce. The Civil Union Act however, makes no provision for the dissolution of civil unions by divorce. Rather, it provides that any reference to the term “marriage” as it appears in any other law (save for the exception of the Marriage Act No. 25 of 1961 and the Customary Marriages Act No. 120 of 1998), includes a civil union.

Our courts have moreover confirmed (in the case of AS v CS 2011 (2) SA 360 (WCC)) that the provisions of the Divorce Act No. 70 of 1979 (“the Divorce Act”) apply equally to civil unions.

What all of this means is that a spouse wishing to terminate his/her civil union by divorce will need to demonstrate the following (known as the “grounds of the divorce”):

• That the marriage has irretrievably broken down. In this instance the court will need to be satisfied that the marriage relationship between the spouses has reached such a state of disintegration that there is no reasonable prospect of restoring a normal marriage relationship. This can be shown, for example, through evidence that marriage counseling proved unsuccessful, or through evidence that the couple have not lived together for at least one year; or
• That his/her spouse is mentally ill or is continuously unconscious.

Once the grounds for the divorce have been shown, the patrimonial consequences of the union will then be considered. This is where the parties’ antenuptial contract will come into play and its terms will be implemented by the court, or where the joint estate will be divided if the parties did not enter into an antenuptial contract.

Anybody wishing to obtain a divorce must bear in mind that a court will not grant a decree of divorce unless it is satisfied that the interests of any dependent and/or minor children born of the marriage have been properly catered for. This will cover all aspects regarding the parties’ children (including any adopted children), such as with whom the children shall live, their guardianship, the extent of contact that the children shall have with the non-resident parent and the maintenance payable in relation to the children.

As part of the divorce action, either party may also institute a claim for spousal maintenance against the other party.

As is the case with any divorce, the most cost effective and quickest way to obtain a decree of divorce is for the parties to enter into a settlement agreement in terms of which they record their agreement in respect of all aspects of their divorce. The parties’ settlement agreement will then be presented to the court and if the court is satisfied with the contents of the agreement (in that it complies with the above requirements) it will grant the requested decree of divorce incorporating the terms of the parties’ settlement agreement. To assist parties in reaching a settlement agreement as soon as possible and to obtain a final order of divorce soon thereafter, mediation (with the help of an independent expert) is an excellent option. Mediation is a non-binding process in terms of which parties negotiate through a mediator to try and reach a settlement agreement.

If the parties are however unable to reach agreement then the issues in dispute between them will need to be determined by the court and the divorce will need to proceed to trial. After hearing the evidence presented by each respective party, the court will grant a decree of divorce and will make an order regarding all other issues in dispute between the parties. Since divorce trials are extremely costly and take years to be completed, this route is to be avoided if at all possible and couples should try as hard as possible to settle their differences.

a civil union can be dissolved in the same way as any heterosexual marriage

It follows from what is set out above that a civil union can be dissolved in the same way as any heterosexual marriage and that the same legislation and principles apply to the dissolution of both unions.

Although this article aims to simplify the issues for readers, it is recommended that any person considering instituting divorce proceedings consult with an experienced attorney specialising in family law matters in order to obtain the necessary assistance and guidance and in order to ensure that his/her rights, as well as the best interests of any impacted minor children are protected as far as they can be.

Corien Potgieter and Tarryn Witter, Directors at Brand Potgieter Incorporated

https://www.brandpotgieter.com
+27 11 781 0169
admin@brandpotgieter.com

Tarryn Witter and Corien Potgieter are contributing writers for the Anova Health Institute and these are their views, which may or may not reflect those of Anova and its affiliates.