n Stellenbosch Law Review = Stellenbosch Regstydskrif - The need for new legislation and/or divorce mediation to counter some commonly experienced problems with the division of assets upon divorce




With regard to marriages concluded in terms of the Marriage Act 25 of 1961 and the Civil Union Act 17 of 2006, the division of the spouses' assets is principally determined by the matrimonial property system applicable to the spouses' marriage. With regard to marriages concluded in terms of the Recognition of Customary Marriages Act 120 of 1998, the matrimonial property system selected by the parties is less important and the court's view of what is equitable and just is decisive in determining how the parties' assets will be divided. Although our law provides clear rules and instructions regarding the division of the parties' assets upon divorce, there are certain difficulties and practical problems which are often experienced and which make this aspect of divorce one of the thorniest issues to resolve in divorce litigation. These problems relate to the postponement of patrimonial claims or the finalisation thereof to a date after the divorce order, uncertainty about the extent of the parties' assets and the dissipation of such assets. A possible solution to counter some of these problems is the enactment of new legislation in terms of which the effective date for determining patrimonial claims is accelerated to the date of the service of the divorce summons. A better solution through which all the problems encountered with the division of assets upon divorce can be precluded is divorce mediation. In the mediation process parties can holistically negotiate with the assistance of a trained and accredited mediator on patrimonial claims as well as all other issues in the early stages of divorce. An effective date for the determination of patrimonial claims can already be agreed upon at the first mediation session and at the second mediation session an informal discovery process can be followed to give parties certainty about the extent of marital assets and minimise the risk of "preventative estate planning".


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