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Divorce: everything you should know
March 2009
South Africa has one of the highest divorce rates in the world. According to statistics, one in two marriages end up in divorce. To get a divorce you need proof that your marriage is not working any longer. For a court to grant a divorce order, irretrievable breakdown of the marriage must be proved. You must satisfy the court that it's reached such a stage of disintegration that there's no reasonable prospect of restoring a normal marriage relationship. The bottom line is that you must be able to show that living together has become intolerable.
South Africa has one of the highest divorce rates in the world. According
to statistics, one in two marriages end up in divorce. To get a divorce you
need proof that your marriage is not working any longer. For a court to grant
a divorce order, irretrievable breakdown of the marriage must be proved. You
must satisfy the court that it's reached such a stage of disintegration that
there's no reasonable prospect of restoring a normal marriage relationship.
The bottom line is that you must be able to show that living together has become
intolerable. We’ll explain the accepted grounds for divorce below.
GROUNDS FOR DIVORCE Any circumstances that lead to irretrievable breakdown of the marriage may
be given as grounds or reasons for divorce, but common grounds that the courts
will accept include the following:
Abuse Abuse includes not only physical abuse in that your spouse
assaults you or your children, but also financial abuse in that he/she fails
to contribute to the common household or do not support you and your children. A
court will furthermore accept evidence of emotional abuse, for instance where
your spouse abuses you with demeaning remarks and severely criticise you.
Mental
illness or unconsciousness Mental illness or unconsciousness constitutes valid grounds for divorce. The
law does, however, prescribe a minimum period for which these states must persist
for them to be valid grounds for divorce. You have to present the testimony
of an expert to prove that it's a persistent state. If your spouse has passed
out on the couch after a long night at the bar, it doesn't count.
Habitual
criminal and imprisonment If your spouse has been declared a habitual criminal and is serving a prison
sentence as a result, the court will also accept this as proof of irretrievable
breakdown.
Adultery Adultery in itself is not a ground for divorce, but if you can prove that
living together has become intolerable as a result of it, it will satisfy the
court.
Other grounds These grounds listed above, are not the only grounds for divorce. Any circumstances
that led to irretrievable breakdown of the marriage relationship may be shown.
A court will normally grant an order for divorce if you can show that you haven’t
lived together as spouses for a continuous period of at least one year immediately
before you institute action.
Remember that it is not enough merely to state
that you and your spouse want a divorce. If you don't provide proof of irretrievable breakdown,
and you don't convince the court that there is no prospect of reconciliation,
it will postpone the divorce order. The court may, for instance, order you
to go for counselling or to wait for a year before you come back to court;
this is to give you time to decide for sure whether saving the marriage is
or isn't possible.
What you can claim with a divorce order Along with an order for divorce, you may claim what is called alternative
relief. This includes:
A claim for custody or access to your minor children. If you claim for
custody, it means you want the children to live with you, and you want to
be the parent who decides on their day-to-day upbringing. If you claim for
access to the children, it means you want them to live with your ex, but
you want to have reasonable access to them for specified periods.
An amount of maintenance for you and your minor children (if they live
with you).
Division of the property in your joint estate, if you are married in community
of property, or division according to the ante nuptial agreement if you are
married out of community of property.
Alternative relief: you give the court the discretion to add to your
claim as the court may consider necessary.
A claim for your spouse to pay the cost of litigation (the legal fees).
Steps in the process
Serving
the summons After all necessary documents are completed by your lawyer; you will receive
a case number, which will be indicated on the summons. The original summons
and a copy of it will be handed over to the sheriff of the area in which your
spouse lives; to be served on that spouse (delivered to the spouse). The sheriff
will issue a report if the summons has been delivered successfully.
Notice
of intention to defend If you have approached the Divorce
Court, your spouse has approximately one month after the delivery of
the summons to contest your claim. If the proceedings have been instituted
at the High Court, the spouse has ten days to give notice of intention
to defend. If the spouse indicates the intention not to contest the action
(i.e. by not responding), it means that the spouse doesn't even have
to come to court for the matter.
Divorce
settlement The main issues in a divorce settlement are usually
division of property, maintenance, and who gets custody of the children.
If you can't reach agreement amicably before the divorce proceedings, the
best way to go about this is to reach a settlement with your spouse when
your claims are being contested. This will save you both a lot of time,
money, and energy. It's usually best to reach a compromise regarding property
division, maintenance, and custody as this will shorten the court process,
which can cost a lot of money. Both of you must sign this settlement, and
the court will then make it an order. This will mean that if one of you
does not abide by it, you could be found guilty of contempt of court, and
could be jailed.
Children If there are children involved, the court will
always want evidence that the children’s interests are protected
and that they will be properly cared for and maintained. It's the court's
job never to grant a divorce order unless it is satisfied that the arrangements
regarding the children are the best possible under the circumstances.
If
you've approached the High Court, a report from a Family Advocate will
also be required. In this report, he or she will make recommendations to
the court regarding the best interests of your minor children. This is
not a requirement when you use the Divorce Court.
Changed
marital status After the court’s divorce order, your marital
status has been changed effectively and women can revert to their maiden
name (if they should choose to do so) without any further registration
or cost. Just remember to inform banks, shops where you have accounts,
and other businesses that you deal with.
You will have to submit your identity
document together with a certified copy of the divorce order to the Department
of Home Affairs, so that it can amend its records to reflect your changed
marital status. This will then serve as proof of divorce in any future
situations where you may need it.
There is nothing that stops you from conducting
your own divorce proceedings. However, it's not advisable to do so, especially
if your spouse wants to contest your grounds for divorce, claims for property,
maintenance, or custody of your children. You're on much safer ground if
you get legal advice on these matters. And remember not to sign anything
before getting legal advice! You may find yourself signing away valuable
rights.
