I am doing more and more gay divorces lately, and the reason for this is that there are more and more gay marriages these days.
In one of my most recent cases which we settled outside court, my client had a good job, earning in excess of R60 000 per month. He and his husband had been married for four years. His husband was a student, and my client had been paying for his studies at university during the course of the marriage. My client instructed me that one of the main reasons for the breakdown in the marriage is that my client had had an extra-marital relationship.
My client's husband had been to see an attorney prior to my client consulting me. My client had shown me a draft consent paper drafted by the other attorney. One of the proposals in the settlement agreement was that my client pays maintenance in the sum of R5 000 per month until the remarriage of my client's husband. Their proposal further was that this maintenance be increased at ten percent per annum.
A further proposal in the draft consent paper drafted by the attorney was that my client continues paying for the study costs of his soon to be ex-husband for the next two years, at which stage the studies would be complete. There was also a fixed property registered in both of their names, and their proposal was that my client continue paying the bond on the property for the next two years while his husband continues to reside in the property, at which stage the fixed property would be sold and the proceeds equally divided between the two parties.
I advised my client that the same laws would apply to gay marriage as to a heterosexual marriage. My client would therefore be obliged to pay rehabilitative maintenance to his husband for a certain period of time after the divorce. Unfortunately for my client, because he had been paying the tuition fees of his husband at university, there would also be a legal duty on him to make some kind of contribution to his study fees post–divorce.
Eventually we settled the matter on the basis that my client pays an amount of rehabilitative maintenance in the sum of R2 000 per month for two years after the divorce, with no escalation clause. We agreed that he would only make a further contribution of R20 000 towards the university studies. As far as the fixed property was concerned, we agreed that my client's husband could continue residing at the fixed property for six months after the divorce, at which stage it would be sold and the proceeds divided equally between the two parties.
By virtue of the marriage in community of property, we furthermore agreed that my client's husband would be entitled to fifty percent of my client's pension at his place of employment. My client also agreed to give his husband the use of a motor vehicle for six months after the divorce.
As appears from the above, the same rules apply to a gay marriage as to a heterosexual marriage. If one person gets another accustomed to a certain standard of living during the course of the marriage, there is always a legal duty on that person to maintain the other to the same degree for a certain amount of time post-divorce.
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