In any relationship, the financially stronger party is usually the stronger negotiator – and so the one who wields the most power.

Sadly, this is also true in marriages. In South Africa, statistics show that the husband is still usually the breadwinner, while the wife is the stay-at-home parent.

When it comes to negotiation, the effects of this power imbalance are often felt as early on as when the ante nuptial contract is drawn up.

This is particularly the case where one spouse has already accumulated substantial wealth prior to the marriage.

This “prior” wealth means a high commencement value in the ante nuptial contract, which increases each year to account for the fluctuation in the value of money.

In this situation, if the married couple reach an impasse and decide to divorce, the commencement value often absorbs most of the accrual value in the wealthier spouse’s estate, and little is left for the poorer spouse.

The current trend in South Africa is to encourage divorce mediation. In this process, each party sits down around a table and reaches an agreement with the assistance of a divorce mediator, who imparts legal information rather than advice.

This is as opposed to divorce litigation, where the two parties use an attorney and have the matter decided in a court. The problem is that if there is an imbalance of financial power, divorce mediation is often not the answer and can lead to the weaker party entering into an unfavourable agreement.

This is generally due to coercion and pressure from the stronger and more financially empowered spouse.

Naturally, there are instances where highly skilled divorce mediators are equipped to manage imbalances in bargaining power. Still, my view is that divorce mediation is only valuable in situations where parties are both prepared to be reasonable and fair. The plain fact is that in many cases of divorce where emotions are running high, this is unlikely.

Of course, the benefit of divorce mediation - if it works - is that it is cheaper and quicker, and doesn’t create the levels of vicious antagonism often found in litigious divorces.

Divorce litigation, has its own set of problems for a spouse who is weaker financially and emotionally. The litigation process is one in which the spouses are pitted against one another with the assistance of attorneys and advocates. Usually, a settlement is often only reached on the steps of the court.

The major difficulty with divorce litigation is that it is extremely expensive and can have damaging effects for the financially weaker spouse. To help mitigate this, the High Court provides a process in divorce litigation called a Rule 43 Application. 

This is where an application may be brought for a contribution towards the costs of the litigation and interim maintenance. However, the awards for these costs are often small and certainly don’t cover the funds needed for an experienced team of attorneys, advocates and other legal experts.

Often, the weaker spouse simply folds under the pressure of the divorce litigation and agrees to a settlement far below what he/she is actually entitled to. Of course, the benefit of divorce litigation is that the team of legal experts better manages the process and the prospect of a spouse being browbeaten into submission (as could happen with divorce mediation).

Is there a solution to this rather sticky issue? Both divorce mediation and litigation have their pros and cons. Perhaps the solution lies in a complete overhaul of our matrimonial property systems. Specifically, it may be time to empower the judiciary so that it can make equitable distribution awards to each spouse.

This process would take into account the economically valuable assets of the divorcing parties, and to value equally the contributions made by the breadwinner and homemaker.

Until such time as these reforms happen, divorces will unfortunately continue to leave very clear cut financial winners and losers.

For more information email Gillian Lowndes at gillian@lowndes.co.za

For media queries, contact Renee Schonborn at renee@littleblackbookpr.co.za or 083 600 3121

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