Usually, whether the parties are same-sex or heterosexual does not change the legal consequences of their relationship simply because the one is hetero sexual and the other not. The law does not discriminate on this basis between people over-all.
Just like any relationship, the duty to maintain usually only arises upon marriage. Unfortunately, same-sex couples cannot marry in terms of the Marriage Act, but must enter into a Civil Union in terms of the Civil Union Act. Heterosexual persons may however choose to either marry in terms of the Marriage Act or enter into a Civil Union in terms of the Civil Union Act. It is regrettable in my view that the legislature did not grant homosexual persons the right to enter into a Marriage in terms of the Marriage Act.
Should parties elect not to formalize their relationship in terms of the Civil Union Act (applicable to heterosexuals and homosexuals) or Marriage Act (applicable to heterosexuals only) then the relationship remains one of simple cohabitation. If one of the parties wishes maintenance from the other, certain requirements would have to be proven and do not simply just come into operation. (please note that this article does not discuss Customary marriages and consequences thereof, but Unions and Marriages in terms of the applicable Acts only). Please see our blog on co-habitation for more information regarding co-habitation at https://www.hamelattorneys.co.za/livig-together-co-habitation-in-south-africa/
Should parties elect to formalize their Civil Union or Marriage, then an automatic duty to support and maintain is created by law. Of course, once a Civil Union or Marriage is entered into, it can only be dissolved in accordance with the applicable law or upon death of one or both of the parties.
Should you thus have entered into either a Civil Union or a Marriage and your partner/spouse has not passed away, you would need to dissolve the Civil Union or Marriage (as the case may be) via the Courts. The same general rules apply to divorce regardless of whether the relationship was a marriage or Civil Union ie. grounds for divorce must exist such as the relationship has broken down irretrievably, the party(ies) have lost their love for one another etc. Your attorney will discuss the grounds for divorce and which may be applicable to your particular situation at consultation.
One of the most important documents of consequence would be your prenuptial agreement (if any). This Agreement will determine whether the estate may be split 50/50 or according to the accrual or not. For more information regarding prenuptial agreements, please see our blog at https://www.hamelattorneys.co.za/pre-nups-what-to-consider/
As with any divorce, the parties may Settle who will pay what and how assets will be divided or they can argue about it, based on legal submissions, at Court and then the Court will make the necessary decision regarding said debts and assets. Your attorney will advise you on your particular matter dependent on your unique circumstances at that time. For more information about divorces please see our blog at https://www.hamelattorneys.co.za/divorce-when-is-it-opposed/ or https://www.hamelattorneys.co.za/divorce-when-is-it-unopposed/
Whenever a divorce is looming, one of the other important aspects to consider would be maintenance. Are you entitled to maintenance? If so, how much and for how long? Are you obliged to pay maintenance? If so, for how long? These questions will be discussed with you by your attorney at consultation. Of course, the same applies to maintenance for your children (if applicable).
We are frequently confronted with questions pertaining to whether one spouse can refuse to divorce or whether maintenance can be with-held or contact to children may be withheld. For more information regarding these topics please see our blogs at https://www.hamelattorneys.co.za/cant-agree-on-custody-what-now/ ; https://www.hamelattorneys.co.za/spouse-refuses-to-divorce-can-i-make-him-her/ ; https://www.hamelattorneys.co.za/cannot-see-children-without-maintenance/ or in general our blog page at https://www.hamelattorneys.co.za/blog/
Contact us today to have your questions answered and to know your rights! https://www.hamelattorneys.co.za/contact/