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DIVORCE LAW - FAQ's             Back to home page

 

Unfortunately 50 % of all marriages in South Africa now end in divorce. According to the justice department’s 2012 to 2013 annual report 50 517 divorces were finalized in the Regional and High Court’s. This has very important legal consequences for all parties concerned. If you are contemplating getting divorced you need to make informed decisions and know your rights and obligations. Read more on why mediation is important, when you will require a separation agreement and what the legal consequences of divorce will be on your selected ‘property regime’ Getting divorced is an extremely traumatic event in your life, so be sure to consult with an attorney to assist and guide you through the options and process-and to ensure your rights are protected at all times.

 

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  1. I decided to get divorced – How do I do this?
  2. I want to get divorced but cannot afford the services of an attorney - will the Legal Aid Board assist me?
  3. Can I get a divorce by means of the Family Court?
  4. My marriage is breaking up – We decided to separate for a while – Do I need to involve my lawyer?
  5. What are the grounds for divorce?
  6. Divorce issues explained – Custody
  7. The role of the family advocate in divorce cases
  8. Divorce issues explained – Access to children
  9. Divorce issues explained – Maintenance
  10. Divorce issues explained – Division of property
  11. Divorce issues explained- Division of retirement funds
  12. Customary marriage divorces
  13. Can I be divorced in South Africa if I got married abroad?
  14. What is the legal status of Muslim marriages in South Africa?

 

1. I decided to get divorced – how do I do this?

 

When your marriage has irretrievably broken down, or any other reason exist that made you decide to terminate your marriage by getting divorced, it would be advisable to seek legal counsel. (Also see the Divorce Act, 1979)

There are a number of issues that needs to be addressed, including:

  • Custody of the children,
  • Access to such children
  • Maintenance for yourself, your spouse or for the children where applicable,
  • Division of the property, dependant on the property regime you were married into, etc.

It is advisable that the parties to a divorce reach an agreement in regard to the above issues prior to any involvement by the court. This will expedite later proceedings and is also cost effective.

Your lawyer will be able to assist you in the formulation of such an agreement drawn up between you and your spouse and can also mediate during a meeting with the parties, ensuring that such agreement is amicably reached.

A summons for divorce and other court process needs to be issued or replied to which will be taken care of by an experienced lawyer.

Divorce is known to emotionally burden the parties involved.

It is advisable to instruct an experienced lawyer for advice and assistance to ensure that all your needs in this regard is attended to.

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2. I want to get divorced but cannot afford the services of an attorney - will the Legal Aid Board assist me?

 

Yes, the Legal Aid Board gives assistance to those who want to get divorced.

You will first have to pass a ‘means test’ to see if you qualify. Here is a link to the Legal Aid Board guide.

You will not get legal aid assistance if:

  • There is a reasonable possibility that you may reconcile with your spouse.
  • The director of the board feels that the has not been enough of an attempt by you and your spouse to come to an agreement
  • You used Legal Aid before to sue for divorce but then decided not to go ahead with the divorce.
  • There are no children involved with the divorce

You can also approach the local Family Court (if there is one in your area) for a cost effective divorce procedure.

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3. Can I get a divorce by means of the Family Court?

 

Family courts combine issues of divorce, maintenance, custody, guardianship and other Children’s court matters. Family courts are currently pilot tested in some areas.

All Regional Courts are now authorised to perform Family court functions. In the absence of a Family court in a specific area, the High Court should still be approached.

One of such functions is to make it easier and cheaper for people to get a divorce. This is achieved by simplifying court procedures which also cut cost e.g. the public may now choose either to represent themselves in divorce matters or to be represented by a lawyer.

If the parties consent to a settlement agreement the divorce can be finalised quickly and cost effectively.

Defended divorces and those with disputes regarding children may take much longer to finalize. The family advocate may also get involved to protect the rights of such children.

For all children related issues not dealt with in the Family court, the public can now approach their local Magistrates court for assistance.

Magistrate courts are now authorised to be Children’s courts within its jurisdiction and may deal with all issues relating to the care, protection or well-being of a child as provided for in the Children’s Act 38 of 2005, such as the contact with children, paternity and support of children.

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4. My marriage is breaking up – we decided to separate for a while – do I need to involve my lawyer?

 

If your marriage reached the stage where you need to reassess future plans due to current conflict between yourself and your spouse, it is advisable to consider a separation prior to a decision to get divorced.

The agreement between spouses to separate can be formal or informal.

An informal separation agreement can be a mere verbal agreement between you and your spouse regarding the conditions of such a separation i.e. arrangement regarding living separately, interim custody of the children, maintenance etc.

A formal separation involves your attorney at law. He will draw up the separation agreement encompassing all the arrangements applicable.

A formal separation agreement can be costly but election of this route can be advantageous for various reasons.

A formal separation agreement bears proof in a later divorce that irretrievable breakdown in the marriage exist. Irretrievable breakdown must be proved when you apply for divorce.

The court can also utilise the formal separation agreement in its subsequent arrangements regarding property, custody, maintenance and or access, as is applicable.

Religious requirements may also effect a separation as the preferred choice instead of divorce i.e. where your religious sphere frowns upon divorce as a solution to matrimonial difficulties.

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5. What are the grounds for divorce?

 

The two grounds for divorce are:

  • Irretrievable breakdown of the marriage, or
  • Mental illness or continuous unconsciousness of a spouse.

Irretrievable breakdown implies that the spouses in a marriage are unable to continue living together as man and wife.

Two requirements are needed for Irretrievable breakdown of a marriage:

  • The marriage relationship must no longer be normal, and
  • There should be no prospect of the restoration of a normal marriage relationship between the spouses.

What would be considered as being normal should be sought in the consortium concept which embraces everything that pertains to the married state i.e. companionship, love, sexual intercourse etc. If such consortium is terminated or seriously disrupted through the behaviour of a spouse it could be said that that the relationship is no longer normal.

To determine whether the consortium is seriously violated or terminated, the court will follow a subjective as well as an objective approach.

Section 4 (3) of the Divorce Act 70 of 1979 give authority to the court of divorce to postpone the proceedings in order that the parties may attempt a reconciliation if there is a reasonable possibility that they may reconcile through council, treatment or reflection.

In Swartz v Swartz 1984 4 SA 467 (A) 475 it was stated that in determining whether a marriage has reached a stage of irretrievable breakdown, the court will also have regard to the history of the relationship up to the date of the divorce application as well as the attitude of the parties at the trail to the marriage relationship, as revealed by the evidence.

The party that requires the divorce has the onus (duty) of proof that irretrievable breakdown exist in the marriage. The court must be satisfied that the marriage is in such state that no reasonable prospect exists that the parties will get back together, i.e. that one spouse deserted the other spouse etc.

When claiming for a divorce on the ground that a spouse is mentally ill, the court must be satisfied that such a person was admitted to or detained in a mental institution and has been so instituted for a period of at least two years without a prognosis to be cured.

If the other spouse is unconscious, the court must be satisfied that this has been the case for at least six months prior to such an application for divorce and in the absence of any prognosis for recovery.

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6. Divorce issues explained – custody

 

Custody of children has two legs;

  • Joint custody, and
  • Sole custody.

Where parents share joint legal and joint physical custody, they contribute equally in making decisions regarding the children’s upbringing and welfare. They also spend equal time with such children. This situation would be stressful to children so involved and cause personal difficulties in the children’s routine i.e. schooling, etc.

Such an arrangement will also cause practical household problems i.e. the provision of two households equipped to cater for the child’s needs on a permanent basis, etc. This type of arrangement is usually impractical and thus not generally enforced.

Joint legal custody is more commonly enforced. Both parents share in long term decision making regarding the child’s welfare and upbringing but physical custody is awarded to one of the parents.

Sole custody will not easily be awarded to a parent due to the restrictions it places on the rights of the other parent.

When awarded sole custody, such parent will have exclusive legal and physical custody rights in regard to the child.

Awards of such nature are limited to instances where the non custodial parent is found incapable to be responsible i.e. drug addicts, etc. The non custodian parent may apply for limited visitation rights, to be supervised in cases of previous child abuse etc.

An interim custody awards can also be applied for by a parent if good cause exists i.e. in cases of child abuse, etc.

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7. The role of the family advocate in divorce cases

 

Each division of the High court has a family advocate’s office available to assist the court in divorce matters. The function of the family advocate is primarily to investigate guardianship, custody and custodian right issues and recommend actions to the court for implementation.

He may also act as court representative to children whose parents are party to a litigated divorce.

The court may also request the family advocate holding an enquiry to ascertain the best interest of such minor children.

A party to a divorce can also request the family advocate holding such an enquiry i.e. in custody disputes where both parents require custody.

The party requesting such an enquiry will not be charged any fees in regard to such an enquiry held.

Here is a list of offices of the family advocate

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8. Divorce issues explained - Access to children

 

 A non custodian parent is entitled to reasonable access in the absence of a court order stating otherwise.

No specific court order is required to affect the right to reasonable access. Divorce courts often fail to make a specific ruling in regard to access.

To hinder or obstruct a party in enforcing such a right is an offence and may cause the offending party to be found guilty of contempt of court.

The aggrieved party to an access order granted can approach the court for variation.

Access may be limited by the court in instances where the best interest of the children require such intervention.

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9. Divorce issues explained –maintenance

 

Divorce will place an extra burden on the party in whose favour a custody order was granted. This parent now also has the duty to care for the children.

The divorce court will subsequently also make an order in regard to maintenance for such children.

This order can later be enforced or varied by means of filing a complaint at the maintenance court that has jurisdiction in the matter.

The divorce court may also grant an order for maintenance in favour of one of the parties to such a divorce.

Such an order can also be enforced or varied at a local maintenance court with jurisdiction in the matter.

The divorce court can also be requested to grant an interim order for maintenance where such a divorce is still pending.

We have an entire section devoted to maintenance – See questions here

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10. Divorce issues explained - Division of property

 

The property regime applicable to such a marriage will decide how property will be distributed at time of divorce.

In the absence of an ante nuptial agreement covering such division, the court will make a ruling in regard to the matter.

If married in community of property, the joint estate will be divided equally between the parties and debts will also be shared.

If married out of community of property with accrual, the parties will share in the net accrual amount as previously explained. Some assets like donations and gifts will not be shared.

If married out of community of property without accrual, no division will take place and the parties will retain all their property acquired before and during the marriage.

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11. Divorce issues explained - Division of property

 

A pension interest can be split at divorce only if you were divorced on or after 13 September 2007. If the divorce was granted before this date, the non-member spouse has to wait until the member spouse dies, withdraws his or her pension interest or retires in order to claim his or her share of the benefit.

There are a number of conditions that must be met before funds and administrators may split pension assets:

  • The divorce order must specifically state that the spouse who is not a member of the fund is entitled to a pension interest, as defined in the Divorce Act.
  • The divorce order must specify the non-member spouse’s share of the pension interest as a percentage or rand amount 
  • The fund that has to deduct the share of the pension interest must be named or identifiable; and 
  • The fund must be expressly ordered to endorse its records and pay the share of the pension interest.

The Divorce Act defines the pension interest that can be taken into account in a divorce order or a settlement agreement. A pension interest excludes a monthly pension from a guaranteed annuity or an investment-linked annuity that was bought with retirement fund savings. It also excludes any withdrawal benefit paid out on resignation or retrenchment or as a lump sum on retirement.

If your divorce order is found to be unenforceable against your former spouse’s fund, you will still have a claim to the pension interest to which you are entitled – for this you will need to consult with a divorce lawyer.

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12. Customary marriage divorces

 

The same grounds for divorce as for the divorce of a civil union, applies here. See also the Recognition of Customary Marriages Act.

If the court is satisfied that irretrievable breakdown of a marriage is present, a divorce order can be granted.

The court will also make a ruling in regard to maintenance for the children with regard to any customary law arrangements made.

A ruling will also be made regarding custody and guardianship of the minor children.

Lobolo is neither a dowry nor a form of compensation. Lobolo is a form of security placed by the groom in the care of the bride’s father.

Should the groom in later years be found to be unworthy of his wife he could forfeit the lobolo. On the other hand, if she turns out to be inadequate, he could be reimbursed with the lobolo

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13. Can I be divorced in South Africa if I got married abroad?

 

The divorce court has jurisdiction to grant a divorce to a person resident in the area of the court’s jurisdiction on date of such application, or where such applicant has been a resident in South Africa for a year or more immediately before such date.

The divorce court therefore does have the authority to entertain a divorce application from any one that were married outside the borders of South Africa - as long as one or both the above criteria is applicable to the matter in question.

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14. What is the legal status of Muslim marriages in South Africa?

 

Prior to April 2014, spouses in a Muslim marriage under South African law were ordinarily denied inheritance and other rights. Women especially were denied spousal support and a fair distribution of property at the dissolution of a Muslim marriage.

In April 2014 more than 100 imams graduated as marriage officers, and are required to comply with the legal requirements of the South African Marriages Act of 1961. Marriages performed by them will now have automatic state recognition, and from the onset of a marriage, Muslim spouses will be protected under South African law.

Current legislation allows all couples to notarise an antenuptial contract to regulate the consequences of their marriage-the same mechanism also affords Muslim couples the opportunity to notarise an Islamic marriage contract. Imams are compelled to inform betrothed couples on the need for a notarised contract that accords with South Africa’s constitutional provisions.

 

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