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Divorce Attorneys

Divorce in South Africa Explained
Grounds for a Divorce

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

Irretrievable breakdown

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.

MAINTENANCE

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.


 

 
Ending an African customary marriage PDF Print E-mail
Written by Louwrens Koen   
Tuesday, 03 February 2009 19:37

Customary marriages can only end if there is a court order. The same grounds for divorce that apply for civil marriages now apply to customary marriages. In other words if the court agrees that there has been an 'irretrievable breakdown' of the marriage then it will agree to dissolve the marriage. The spouses are free to settle on any terms they choose, but the court will make an order regarding the custody and guardianship of any minor children and may make an order for maintenance to be paid, taking into account any arrangement that may have been made in terms of customary law.

In terms of the customary agreement between the spouses, the wife's family may have to return at least part of the lobola to the husband's family. If the husband publicly rejects his wife for no reason at all, he will not get any lobola back. But if the husband has what is considered a just reason to reject his wife he may ask for the lobola back.

A husband may be considered to have good reason for rejecting his wife if she neglects her duties in the home, or neglects her children, or denies him sexual intercourse. If the wife sometimes sleeps with another man, this may not be considered enough reason for a man to reject her, but continual unfaithfulness may be considered a good reason for ending the union.

A wife may be considered to have good reason for deserting her husband if he accuses her falsely of witchcraft, or ill-treats her unreasonably or abandons her.

 
Custody of the children

Arrangements made at the time of divorce

 When a couple gets divorced, they must make a number of arrangements. The woman might have to fight to get a fair deal, especially when it comes to the children of the marriage. The most important arrangements the couple must make are:

·         custody of the children
·         access to the children
·         maintenance of the children
·         maintenance for one partner, usually the wife
·         dividing up the family property


Custody and maintenance of children are the most important things to arrange. A court will not let a couple get divorced until it is sure that there are satisfactory arrangements for the children. A social worker called a Family Advocate assists the court to sort out the children.

The court must decide which parent will have custody of the children and who will be responsible for the maintenance of the children. The court also decides in what way and how often the other parent can see the children, called access to the children.

Custody of the children

 This means care of the children. The law says that children must always have an adult to look after them. The court always thinks hardest about the interests of the children, not just the interests or wishes of the parents. So if the parents can't agree on who should have custody of the children, then the court looks to see which parent can best look after the children. Often the court asks welfare officers to talk to the parents and then give the court a report. Usually the court gives custody to the mother, especially if the children are very small.

The court can also ask the Family Advocate to hold an enquiry to see what would be in the best interests of the children who are under 18. The Family Advocate could look at guardianship, custody and custody rights.

 

There is a Family Advocate's office in each division of the High Court (where divorces are heard). The Family Advocate holds an enquiry and makes a recommendation and report to the court. If the parties don't settle the matter out of court, then the Family Advocate also goes to court to represent the interests of the children.

One of the parents can also ask the Family Advocate to hold an enquiry. An example: the husband sues for divorce and asks for custody of the children. But the wife also wants custody. Then either of them can complete an 'Annexure B' form which asks the Family Advocate to enquire into the problem. You can get an 'Annexure B' form from the Registrar of the High Court, a lawyer, Legal Aid or from the Family Advocate.

 The Family Advocate does not charge the parent for holding the enquiry.

Divorces can take a long time. Sometimes a woman leaves her husband because he is cruel or violent to her and the children. If the woman wants custody of the children while the divorce is happening, she can make an application for interim custody. This means she asks the court to give her custody in the meantime, until the divorce court decides. It will help if she can prove to the court that her husband is bad to the children.

 

 If the woman is really worried that the children are suffering, she can make an urgent application for interim custody. She asks the court to give the children to her quickly.

 

 

 

 
Can a South African court divorce South Africans living permanently abroad? PDF Print E-mail
Written by Louwrens Koen   
Tuesday, 03 February 2009 20:01
Can a South African court divorce South Africans living permanently abroad?
Q I am married to a South African and want to get a divorce. We were married in South Africa about 4 years ago and have been separated for 2½ years. We now both live in New Zealand and have agreed on the terms and conditions of our divorce including the custody of our 4 year old daughter. Does one of us have to be present in South Africa to be able to complete the divorce process or can it be handled remotely by South African lawyer on our behalf? Also what would be the costs for undefended proceedings?

A In terms of South African law, only a High Court can divorce the parties. The court has jurisdiction where the parties or either of the parties is -

a) Domiciled in the area of the court's jurisdiction on the date on which the action is instituted; or

b) Ordinarily resident in the area of jurisdiction of the court on the date on which the action is instituted or has been ordinarily resident in the Republic for a period of not less than one year immediately prior to that date.

As both the parties appear to be permanently resident in New Zealand, a South African court would not have jurisdiction to hear the divorce action and you would have to institute action for divorce out of a New Zealand court. That court would have to apply South African law.

Last Updated ( Tuesday, 02 March 2010 18:49 )
 
Joint v. Sole Custody

Please explain what the rights are of a parent who has joint custody of a child as opposed to one that has sole custody? My husband is going overseas and wants sole custody of our two children. I want to know what my rights would be if he did have sole custody and if I only agreed to joint custody.

Sole custody

The courts are reluctant to award sole custody to a party as this severely curtails the powers of the non-custodian parent. For example, a parent with sole custody could stipulate in his or her will that a third party (rather than the non custodian parent) should be appointed as guardian of the child in the event of the death of that parent.

A parent with "sole custody" of a child has exclusive physical and legal custody rights concerning the child. Sole custody arrangements are rare, and are usually limited to situations in which one parent has been deemed unfit or incapable of having any form of responsibility over a child - for example, due to drug addiction or evidence of child abuse. In sole custody situations, the child's other parent (also known as the "non-custodial" parent) has neither physical nor legal custody rights, but may be entitled to periods of visitation with the child (though those visits may be supervised, especially in situations involving domestic violence or child abuse).

Example: Mother and Father have divorced, due to Father's substance abuse and addiction. Mother seeks and is granted sole custody of Child. This means that Mother alone has legal authority to decide key issues related to Child's upbringing, and Child will live exclusively with Mother. Father may be entitled to visitation with Child.

Joint Custody

In child custody situations, "joint custody" usually refers to one of two possible scenarios: joint legal and physical custody, or joint legal custody.

In true "joint custody" arrangements, parents share equal "legal custody" and "physical custody" rights. This means that parents participate equally in making decisions about the child's upbringing and welfare, and split time evenly in having day-to-day care and responsibility for the child - including the parent's right to have the child live with them. True joint custody arrangements are rare, because of their potential to cause both personal difficulties (stress, disruption of child's routine) and practical problems (scheduling, costs of maintaining two permanent living spaces for the child).

Example: Mother and Father are divorced, and agree to a true joint custody arrangement over Child. Mother and Father will work together to reach agreement on all major issues concerning Child's welfare and upbringing (legal custody), and agree to a schedule where Child lives with each parent for one month at a time (physical custody).

Much more common than true joint custody arrangements (where both physical and legal custody are shared) is "joint legal custody," in which both parents share the right to make long-term decisions about the raising of a child and key aspects of the child's welfare, with physical custody awarded to one parent.

Example: Mother and Father are divorced, and decide to share joint legal custody of Child, but also agree that Mother should have primary physical custody of Child. Mother and Father will work together to reach agreement on all major issues concerning Child's welfare and upbringing (legal custody), but Child will live primarily with Mother.

 
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