Frequently used legal phrases, and their definitions, in a divorce

The festive season has come to an abrupt stop and as people are returning to work from a rather unusual Festive season in 2020, family law lawyers are being inundated with new divorce enquiries.

The “divorce season” has always existed directly after festive periods, and especially during the first few weeks following the December / January festive season. It would, however, appear as if the Covid19 pandemic has increased the usual influx of divorce enquiries in 2021.

The pandemic is surely not to blame for all divorces, however the added anxiety and stress associated with the pandemic has surely “broken the camel’s back” in a remarkable number of marriages.

The enquiries all start with “what are my rights?” It has become quite alarming that so few people understand what all the legal jargon (accrual, maintenance,  contact, residency, in community, out of community, contested, uncontested etc) thrown around on social media actually means.

What follows below are summarised definitions of each of the frequently used phrases in a divorce

In community of property

The marital regime in which the parties share one estate and the parties share equally in the assets and liabilities of the joint estate. The parties are answerable for the other party’s debts.

Out of community of property

The marital regime in which both parties possess their own estates and the parties are not answerable in respect of the other parties’ assets or liabilities

Out of community of property with the inclusion of the accrual system

The marital regime in which both parties possess their own separate estates, however the spouse with the greater estate (albeit taking into account starting values and exclusions) is liable to pay one half of the difference in the nett values of the estates to the spouse with the smaller estate

Primary residence

The minor children’s primary home, previously referred to as ‘custody’.

Contact

A parent’s right to visit and spend time with a minor child, despite the minor child not living with that parent. Previously referred to as ‘access’

Life long spousal maintenance

In circumstances where a spouse has always been maintained financially by a husband or wife such spouse may be entitled to a monthly contribution (financial assistance) towards their maintenance until date of death or remarriage.

Rehabilitative spousal maintenance

In circumstances where a spouse has been maintained financially by a husband or wife, but such spouse is young/ possess an earning capacity such spouse may be entitled to a monthly contribution (financial assistance) towards their maintenance for a pre- determined fixed period.

Child maintenance

The biological parents of a minor child are both obliged to contribute toward the maintenance (financial needs) of a child on a pro-rata level in accordance with their respective incomes

Uncontested / Unopposed divorce

A divorce action in which the parties are able to reach a settlement agreement out of court

Contested / Opposed divorce

A divorce action in which the parties are unable to reach a settlement agreement.

The specialised family law team at Adams & Adams (Shani van Niekerk, Senior associate and Courtney Elson, associate) are equipped to assist with both opposed and unopposed divorces and ensure that each matter is considered on its own merits.

Shani van Niekerk
Senior Associate | Attorney
Courtney Elson
Associate| Attorney
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