WeeklySA_AdminINSENSITIVE: South Africans are known for their great sense of humour; however, in some circumstances, a bit of empathy is a more appropriate response…
By Shani van Niekerk
The world was informed of the Kolisi divorce via social media and shortly thereafter various memes, jokes, unsolicited opinions, recommendations, and the like followed.
It is heart-wrenching that South Africans are unable to acknowledge the great trauma and heartache that the Kolisi family is currently enduring. South Africans are known for their great sense of humour; however, in some circumstances, a bit of empathy is a more appropriate response.
A divorce does not only affect the couple who decided to end their marriage, but has a direct impact on the children born from the marriage, close friends of the couple, family members, and all other people who had a role to play in their lives.
Women and men currently embroiled in divorce actions or who have been through the traumatic process themselves, will be able to advocate against the sensationalism around the Kolisi divorce and the uncalled for and insensitive comments posted on social media about it.
The Kolisi divorce has raised various questions, specifically in respect of South African divorce law. The social media warriors seem to have decided how the couple’s assets and finances will be dealt with, despite neither knowing what the couple’s marital regime entails, nor understanding South African divorce law.
When a couple enters into a marriage, they have to elect which marital regime will be applicable to their marriage. There are three marital regimes in terms of which parties can enter into a marriage, to govern the assets of such marriage in South Africa.
The couple can elect not to enter into any antenuptial contract, in which event they will then automatically be married in community of property, so that on divorce or death of one of them, all assets and liabilities would be shared equally.
A couple may also elect to enter into an antenuptial contract in terms of which the accrual system is either included, or specifically excluded. The inclusion of the accrual system would entitle the spouse whose estate has grown the least to become entitled to half of the difference of the accrual in the other parties’ estate.
If the couple, however, elects to exclude the accrual system, they shall not share in any assets or liabilities. In terms of the recent Constitutional Court judgement, the latter may, however, be influenced by a claim for redistribution.
The simple point of the above explanation is that perhaps the social media warriors should refrain from making comments and allegations without understanding the law. The South African community does not know into which marital regime the Kolisi’s entered. It is simply reckless to state that Rachel Kolisi is now entitled to half of Siya’s house or his vehicles.
The social media warriors have also deemed it appropriate to voice opinions regarding the future of the Kolisi children. In South Africa, both biological parents are automatically the holders of equal parental rights and responsibilities.
When a couple decides to divorce, both parents retain full parental rights and responsibilities. The children are, however, usually primarily resident with one parent and the other parent is entitled to contact. In recent times, a shared primary residence regime has been created; however, this is not always in the best interest of the children.
In the social media post by the Kolisi couple, they indicate that they are committed to co-parenting. Co-parenting simply means that they will assist each other in raising the children to the best of their abilities. Co-parenting does not necessarily mean that the children will live equally with both parents and that the children’s expenses will be shared equally.
In respect of the expenses of the minor children, the attorneys dealing with the matter will calculate the reasonable expenses of the minor children and the parties will contribute thereto pro rata in relation to their respective incomes.
In the midst of the Kolisi divorce, parties considering divorce should guard against either taking advice from the social media community or allowing the various comments to affect their decisions going forward.
It is recommended that parties who are contemplating a divorce rather seek the assistance of a family law expert to ensure that they are equipped with the right knowledge and empowered to make the most appropriate decisions.
* Article sourced from Adams & Adams law firm, at which Shani van Niekerk is a senior associate. Her speciality and passion lie in matrimonial disputes and family law, inclusive of Domestic Violence and Harassment issues. She is a member of the Legal Practice Council and Gauteng Family Law Forum.
