How to Mediate a Divorce for Couples Married Out of Community of Property Without the Accrual System

Divorce mediation is a valuable process that helps couples navigate the dissolution of their marriage in a structured and amicable manner. In South Africa, when a couple is married out of community of property without the accrual system, mediation is particularly useful in ensuring a fair settlement without unnecessary conflict. This blog post will guide mediators through the key aspects of handling such cases.

Understanding the Marriage Regime

A marriage out of community of property without the accrual system means that each spouse retains ownership of their assets and liabilities acquired before and during the marriage. There is no sharing of property upon divorce, and each party walks away with what is legally theirs. This makes mediation focused more on practical issues such as maintenance, child custody, and emotional closure rather than asset division.

Steps to Mediate the Divorce

1. Establish the Mediation Framework

• Create a neutral environment where both parties feel safe and heard.

• Clarify the mediator’s role as a facilitator rather than a decision-maker.

• Set ground rules, including respectful communication and confidentiality.

  
  

2. Clarify Financial Matters

• Since the couple is married without the accrual system, property division is straightforward: each spouse retains what is theirs.

• Identify any shared expenses or joint financial obligations, such as debts or lease agreements, and facilitate discussions on resolving these.

• Discuss whether spousal maintenance is applicable, although it is generally not a legal obligation under this marital regime unless special circumstances exist.

  
  

3. Address Child Maintenance as well as Care and Contact

• If children are involved, the best interests of the child must be the primary focus.

• Assist parents in creating a co-parenting plan that outlines care and contact arrangements, visitation schedules, and decision-making responsibilities.

• Calculate child maintenance obligations based on both parents’ financial contributions and needs of the child.

  
  

4. Discuss Emotional and Psychological Aspects

• Divorce can be an emotionally taxing process; allowing space for both parties to express their concerns can foster a smoother transition.

• Encourage professional counselling if needed, especially when high emotions impact constructive negotiations.

  
  

5. Draft a Settlement Agreement

• Summarise all agreements reached during mediation, including child care and contact arrangements, financial obligations, and any other settlements.

• Ensure that the agreement is clear, legally sound, and fair to both parties.

Conclusion

Mediating a divorce for couples married out of community of property without the accrual system in South Africa requires a focus on clear legal principles, emotional sensitivity, and practical solutions. By fostering open communication and ensuring fairness, mediators can help divorcing couples part ways amicably while minimising stress and financial burden.

For those considering divorce, consulting a professional mediator can ensure a smoother transition and a more positive post-divorce future.