What is a Divorce?
A divorce legally ends a marriage. Once a divorce is granted, each partner may legally marry someone else.
There are only two grounds for divorce:
· the 'irretrievable breakdown' of the marriage;
· the mental illness or continuous unconsciousness of one partner
This means the couple can no longer live together as man and wife. Both partners, or one partner, must prove to the court that the marriage broke down so badly that there is no reasonable chance of getting back together.
Examples of the kind of evidence the court will accept as proof of irretrievable breakdown:
- The couple has not lived together like husband and wife for a period of time.
- One partner had sexual intercourse with somebody else and because of this the other partner finds it impossible to continue living together as husband and wife.
- One partner is in prison after being declared an 'habitual criminal'.
- One partner deserted the other.
- One partner abused the other, for example the husband keeps assaulting the wife.
- One partner is an alcoholic or a drug addict.
- The partners no longer love each other - they may be too different, or they married when they were too young.
- One of the partners finds it impossible to live together as husband and wife for any other reason.
Mental illness or unconsciousness
The person wanting the divorce must show the court that the other spouse was admitted to or detained in a mental institution. The person must also show that the spouse has been in the institution for at least two years and that the doctors do not think he or she can be cured.
A person can also get a divorce if the other spouse is permanently unconscious. The spouse must have been unconscious for at least 6 months, and the doctor must see no hope of recovery.
There are a number of issues that need to be addressed in a divorce, including:
CUSTODY OF THE CHILDREN
Before the court will issue a divorce, it has to be decided who will look after the children. The parents can make an agreement or the court can decide.
The most important consideration in deciding which parent should have custody is the best interests of the children.
The Family Advocate at the court can help investigate which parent is in the best position to look after the children and will represent the children in the court if necessary.
If the divorce is taking a long time, for example if the parties don't agree, then an interim custody order can be issued setting out who will look after the children while the divorce is being finalised.
In African, Hindu and Muslim customary marriages, the wife usually takes custody of the children. According to African customary law, the father usually remains the children's natural guardian. The children of Hindu and Muslim marriages are regarded as illegitimate, so the mother is also the natural guardian. In all cases, the father still has a duty to support the children.
ACCESS TO THE CHILDREN
The parent who does not get custody will usually still want to see their children. There therefore needs to be an agreement about when, where and how this parent will have access to the children.
If it is not in the best interests of the children for the other parent to have access rights, then the court can restrict access.
When a couple gets divorced, one party is often in a better financial position than the other. The person who has custody of the children will also have expenses that the other parent does not have. The court will issue a maintenance order requiring maintenance to be paid for the children and, depending on the circumstances, to the other party.
Maintenance for the children is paid to the parent who has custody (but it is important to remember that this is the child's right and not the parent's). All parents have a duty to support their children, including children who are illegitimate.
If there are problems with maintenance after the divorce has gone through, these can be taken to the Maintenance officer at the Magistrates Court.
Whether one party will have to pay maintenance or support to the other party depends on the circumstances. If the parties cannot agree on how much should be paid then the court will decide.
Because Hindu or Muslim marriages are not fully recognised as legal marriages, the wife has no legal status to claim support after divorce.
DIVIDING UP PROPERTY
How the family property will be divided up depends on what property regime the couple adopted when they got married. This will usually be covered in the ante-nuptial agreement if there is one or, if there is no pre-marital contract, then it is determined by law.
The default legal position is that civil marriages are in community of property with accrual. This means that everything that you own is shared, including property and debts. Accrual means that everything that you earn or buy after you have married also becomes part of the joint estate.
If you get divorced, the shared property is divided equally between you. Any debts are also shared.
If you sign an ante-nuptial agreement, you can choose to get married:
- in community of property
- out of community of property without accrual
- out of community of property with accrual.
If the marriage is out of community of property without accruall, then each person keeps their own property from before the marriage and keeps whatever they earn or acquire during the marriage.
If the marriage is out of community of property with accrual then each person keeps their own property from before the marriage but anything that is accumulated during the marriage is shared. Some things, like inheritances or gifts remain separate.