Thank you for clarifying that for me and also for your patience in waiting for a response.
I think it is best to give you an overview of the matrimonial finances and how the court deals with the same.
In relation to the matrimonial finances - the correct way of dealing with the same is by making a claim which can only be done once divorce proceedings have been issued.
If your marriage was a legal marriage in South Africa then it will be recognized here and as you have both lived in this jurisdiction for 5 years and you intend to remain here then the appropriate jurisdiction to deal with any divorce and matrimonial financial proceedings would be here.
The matrimonial finances includes all of the assets and liabilities for both of you including all other assets including your pension/s.
You will both be under a duty of full disclosure to provide full details of all assets and liabilities for both of you to each other so you will get to know the full position.
As you have been married for a long time then the starting point for the division of assets is going to be equality.
The court considers the following criteria when deciding whether to depart from equality:
The income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would, in the opinion of the Court, be reasonable to expect a party to the marriage to take steps to acquire;The financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future;The standard of living enjoyed by the family before the breakdown of the marriage;The age of each party to the marriage and the duration of the marriage;Any physical or mental disability of either of the parties to the marriage;The contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;The conduct of each of the parties, if that conduct is such that it would, in the opinion of the Court, be inequitable to disregard it;In the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring (e.g. a right to your spouse’s pensions).
From what you have said given that you will likely be the main carer of your child and because you earn less than him, then you should argue for a larger share of the matrimonial assets - somewhere around 10 - 20% more.
The courts main priority is going to be wanting to provide a secure home for your child and therefore securing as much as the assets as possible for you and your child so that you can secured housing.
In relation to income - given that your husband earns more than you then she could also claim spousal maintenance. There is no set rule but the court will want to make sure that you are able to meet your needs and your child's needs and you can also claim child maintenance through the child maintenance service. It is the child maintenance service that has jurisdiction in relation to child maintenance and maintenance is payable until a child reaches 16 or 20 if they remain in full time non advanced education. If your girls are 18 and going to uni then he will not have to pay maintenance for them.
Spousal maintenance orders can also be reviewed in the future which will be useful in your case if he gains higher paid employment again in the future.
Your should also check what benefits you will be entitled to as a single mother, to bolster your income position, as well as looking for work when your child is at school to show that your are mitigating your position.
You need to consider referring to family mediation. This is a prerequisite before you can apply to court for a financial order. Google family mediation in your area and give them a call to self refer.
Mediation will try and help you both through full disclosure of both your financial positions and discussions about division.
In relation to the matrimonial finances - If agreement can be reached at mediation then a consent order should be submitted to the court when applying for decree absolute in divorce proceedings to finalise matters, if approved by the court.
If agreement cannot be reached at mediation then the mediator will sign the form that you need to apply to court.
If divorce is not yet contemplated then you could consider a separation agreement. Mediation could try and help agree the terms for this and what is going to happen in the interim whilst you are separated. You need to be aware that such separation agreements are not legally binding on a future family court Judge but they can and do order in line with what was agreed if they considered that full disclosure had taken place and what was agreed was fair.
Please do let me know if I can help you further
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