Parts of the divorce law have been declared unconstitutional: here’s what it means

Boitumelo Entsoko: Welcome to the Money Savvy Podcast. I Boitumelo Ntsoko. In a landmark ruling last week, the Pretoria High Court declared parts of the divorce law unconstitutional and illegal. According to various reports, this paved the way for married spouses after November 1, 1984 – ‘within the property community without an acquired system’ – to ask the court to exercise its discretion and order any amount of property or money. Will be transferred from one wife to another.

Eric Jordan, a Certified Financial Planner at Crew Invest, joins us in this episode to provide more insight into what this judgment means and how it will affect marriage as well as divorce. Welcome, Eric.

Eric Jordan: Thank you, you. Thank you for the opportunity.

Boitumelo Entsoko: Before we know the High Court judgment and what it means, can you please give us a quick breakdown of the Divorce Act?

Eric Jordan: Sure. Divorce law is part of the law that actually governs how a divorce is enforced – in other words, how the parties divide their two estates, as well as matters relating to custody, maintenance, etc. In the future, this is part of the law that the court will use to determine how the divorce agreement can be enforced.

Boitumelo Entsoko: Would you please tell us more about this judgment and what effect it will have if the Constitutional Court confirms it?

Eric Jordan: Of course, of course. As you said in your introduction, a decision in the Pretoria High Court dealt with an issue where the parties were married outside the property community, and that marriage took place in 1988. When the parties divorce, the court is asked to rule on whether Section 7.3 of the Divorce Act is specifically constitutional because it excludes a party married outside of social property after 1984 from claiming the property of the other party. A fair distribution of these resources.

Where it originated from, in this case, one side was the mother at home, which meant she looked after the family, looked after the children, made sure they were well educated – meaning she could not attend to advance her own career, her She could not increase her wealth, where the husband was in a position where he could continue his farming and was very successful – and this allowed him to increase his wealth substantially.

When the parties reached a point where they had to end their marriage and have a divorce, the wife wanted to make a fair distribution of the growth that had taken place in her husband’s property during their marriage.

What really mattered was that he wanted to get a fair share of the growth of that estate; In other words, they added value to his property when he got married.

Boitumelo Entsoko: If someone is married under a similar agreement, but they have been divorced for some time, can they now go to court for a settlement?

Eric Jordan: Yes. Every issue has to be dealt with on the basis of the truth of each case. This can have different consequences, such as the date on which the divorce took place, whether the divorce was made through a settlement agreement, or if it is a contentious issue where the court has given a verdict.

These are just some of the goal setting shareware that you can use.

But in essence, it is possible to amend the divorce order, and you either have to appeal against the decision of the court, or you have to apply for the change of divorce or change of the divorce order which was granted on the basis of the court settlement agreement.

Its success will depend on the information of each subject and the results will depend on those factors.

Boitumelo Entsoko: If anyone is considering doing so, do they have to wait for the verdict before the Constitutional Court?

Eric Jordan: Yeah Al that sounds pretty crap to me, Looks like BT aint for me either. At this point, the matter was referred to the Constitutional Court to confirm that verdict. Once this is done, it will certainly provide more direction and a solid foundation on which you can apply for any such change; Or, if you are in the process of getting a divorce, you are actually claiming the distribution of assets based on this judgment.

Boitumelo Entsoko: What should those who are thinking of getting married consider when choosing a marriage contract – especially in the light of this judgment?

Eric Jordan: So, when you are looking at getting married and considering your options, there are three options of marital rule available.

Either you will be married to a property community, which means there was no formal agreement before your marriage date; This means that both of your estates have merged into a joint estate, which clearly comes down to the line with certain practical effects and potential problems, especially when looking at the contractual power of each party.

The other option is to marry outside the property community, either with or without income. The difference between the two is that the provision of automatic income to one party at the end of the divorce would entitle each party to an equal share in the increase in wealth when the marriage existed. So it will be a clearer demand in terms of what rights each party will have.

The third option is to marry outside the community property without acquisition, which means there is no automatic claim. [the] Increase each other’s property.

But yes, this new ruling opens the door not to deprive a party – if you choose the system that applies to your marriage and you stick to your own career to move the marriage forward.

Boitumelo Entsoko: Should a husband and wife make a financial plan to stay at home so that they do not fall into any adverse situation after divorce?

Eric Jordan: Yeah Al that sounds pretty crap to me, Looks like Al that sounds pretty crap to me, Looks like Al that sounds pretty crap to me, Looks like Al that sounds pretty crap to me, Looks like Al that sounds pretty crap to me / One of the wives – what will be your specific position. It is important to understand the impact of such events, and how your position is designed to allow you to move forward with your own life.

Often, what a husband / wife can do is start investing in their personal abilities, and this can only provide some more security, for example, a spouse at home that he or she will at least be able to take care of themselves. The estate of the other party is injured in the event of a death, or if there is a divorce that is not subject to a claim that needs to be proved in a court of law.

Obviously, in the case of spouses, any donation made between the spouses is tax deductible, so that it is not easy to transfer assets from one spouse to another and to invest assets in the name of that particular spouse.

Boitumelo Entsoko: Why would anyone go this route of competing for a settlement, vs. probably going according to maintenance law?

Eric Jordan: Often maintenance laws provide only certain limitations, stating that any person was accustomed to the lifestyle, how long the marriage existed, and that it considered the personal property of the individual spouse and what. They will be entitled [to]How will they be able to provide for themselves.

This claim itself is very broad; It looks at the full growth of wealth and determines what a fair distribution of wealth growth is to each party while the marriage exists. It also shows what each wife contributed to that particular marriage and clearly what happened as a result in terms of growth and the value of the property.

Boitumelo Entsoko: The ruling sparked much controversy on social media, with some justifying the wife’s inability to resolve issues, saying that if the husband was the only one working, the wife could do the least work, taking care of the house and the children.

However, on the contrary, a study a few years ago found that if a housewife was compensated for all her work, her salary could end up in the region of R50 000 per month, which may be reasonable. As enough savings for the husband. What are your thoughts on this debate?

Eric Jordan: Yes, that’s a pretty complicated question. But really, when you look at it purposefully, if you look at when the parties get married and they are building a life together, each party as a whole comes up with something that allows both parties to focus more on their careers and create some wealth. , While the other party potentially takes care of the family upbringing and much more.

So each party brings a value in the marriage and it should be rewarded or considered in one way or another. What is the exact amount [for] That fair distribution, or what each party contributes to the marriage, is very difficult to quantify, because it largely depends on the lifestyle of the party or what they are accustomed to. So each individual case must be considered. But, [as] To me it is a matter of principle, in the case of divorce it is certainly a just claim against the other party.

Boitumelo Entsoko: Thank you so much, Eric, for joining us on this episode.

Eric Jordan: Thank you, and thank you so much for the opportunity. It is much appreciated.

Boitumelo Entsoko: It was Eric Jordan, a Certified Financial Planner at Crew Invest.

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