Law Clinix

Knowledge is power and your peace of mind

DIVORCE & SEPARATION


 


 DIVORCE

Marital status can be dissolved through divorce that legally ends the marriage. The Divorce Act 70 of 1979 lays down the basis on which a court may dissolve the marriage:

The divorce process will depend on the type marriage regime the spouses was married:

Crucial issues that need attention during a divorce, namely: Primary care of the children, Contact and access to the children, Maintenance for spouse and children and division of the property. Remember a divorce also have emotional implications on the family that needs attention especially on children.

PRIMARY CARE AND MAINTENANCE OF THE CHILDREN

The Family Advocate always gets involved at the court and will give a recommendation to the presiding Judge or Magistrate which parent would be in the best position to look after the children and will represent the children in the court if necessary.

The recommendation includes who is the primary care giver, guardian or both parents may be jointly care givers. The court who is the upper guardian of all children will issue a divorce order, but must decide in the best interest of the child and can decided who will look after the children, this will depend from matter to matter.

The parents can make an agreement about access to the children or the court can decide. If it is not in the best interests of the children, then the court can restrict contact or allow contact under supervision. Both parents remain the children's natural guardians.

The duty to support or maintain the children rests on the shoulders of both parents. The party who is in a better financial position will pay alimony/maintenance to the other parent who has care of the child. Maintenance will be payable to the other parent until the child becomes of age normally at the age of 18 or if child attends tertiary education this alimony/maintenance can continue until completion of the child’s studies.

The court might also issue an order requiring the other party-spousal maintenance. Because Hindu or Muslim marriages are not fully recognised as legal marriages, the wife has no legal status to claim support for herself after divorce but the duty of support for the children by both parents remains.

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.


DIVISION OF PROPERTY

 

In community of property

Both the income of both spouses is seen as one estate. Property is the property of the joint estate. 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

Out of community with the exclusion of the accrual system

Even though the spouse’s matrimonial bond are bonded by a marriage certificate, each spouse retains their own estate meaning each person keeps their own property from before the marriage and keeps whatever they earn or acquire during the marriage Thus the one spouse’s debt is not the other spouse responsibility except if the spouse signed surety for the other spouse.


Out of community with the accrual system

There shall be no community of property between parties, there shall be no community of profit or loss between parties meaning 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.

Each party is responsible for his or her own debt, except where the spouse has signed security for the spouse.

 

Grounds for divorce in South Africa

A marriage may be dissolved by a court on mainly two grounds namely:

The irretrievable breakdown of the marriage; or the mental illness, or the continuous unconsciousness, of a party to the marriage.


The Divorce Process in South Africa


The divorce process in South Africa is relatively straightforward, and most divorces are normally lodged in the High Court and until recently the Regional Courts Amendment Act came into effect in 2010 to amend the Magistrates’ Courts Act, 1944, so as to allow regional divisions of the magistrates’ courts to also deal with divorce cases.

A divorce action is instituted by the issuing of a summons and needs be served personally on the defendant by the sheriff of the court. To determine jurisdiction in a divorce action one or both parties must;

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

b) ordinarily resident in the area of jurisdiction of the court on the said date and has/have been ordinarily resident in South Africa for a period of not less than one year immediately prior to that date.


Usually there are two types of divorces, the contested or the uncontested divorces. An uncontested divorce can be finalized in as little as 8 weeks. If a divorce is contested it may take between 2 - 3 years, but it depends on the attorneys and parties. 


Divorces can be done on your own, in essence a (DIY) Do-it-yourself divorces but there is advantages and disadvantages.


 

 DIY -Advantage

 DIY-Disadvantage

Ø   Undefended and cost effectively the cheaper option.

Ø   If become defended or contested, need help of an   Attorney.

Ø   Time ± 8 week until divorce order

Ø   Time ± 2-3 years until divorce order, but it will   depend on the parties

Ø   Not a complicated divorce.

Ø   Acrimonious divorce.

Ø   Short time duration of marriage.

Ø   Legal fees and expenses not cheap.

Ø   No substantial assets to divide.

Ø   Substantial assets to divide

 Ø   No children or there are no disputes regarding the   children.  

Ø   Disputes regarding the children.

 Ø Do all admin   yourself, (see below the organogram for process of DIY)

Ø Stages of pleadings   (Summons, Notice of Defence, Plea, Counter Claim, Plea to Counter Claim)   application for and set down of trial date. Discovery of documents further   discovery and particulars pre-trial conference trial date   

Ø Hearing Date   appear in court yourself unrepresented or can ask assistance from attorney   for court appearance

 Ø   Hearing Trail date appear in court yourself and be   represented by attorney 


DIY Divorce

 

 

Step 1

Your local magistrate’s court can provide you with the necessary forms and give you guidance or download from this page.

The plaintiff prepares a summons setting out his/her claims. The summons specifies the number of days in which the defendant has to file a notice of intention to defend, i.e. contest the divorce (10 days when the parties live within the jurisdiction of the court or 20 days if they live in different provinces).

When children are involved try to draft a settlement agreement and parenting plan and attached summons.

The court registrar will open a file, stamp the documents and allocate a case number.

Step 2

The documents will then be handed back to the plaintiff and the plaintiff will deliver two sets of these documents to the sheriff in the area where the defendant resides or work.

The sheriff will then serve the documents personally on the defendant.

The Sheriff will issue a return of service proving that the documents were served on defendant. 

Step 3

If the defendant does not answer by way of a notice of defence within the given time, the plaintiff may approach the court to enroll the divorce on the court roll and conclude the divorce on the defendant’s default.

Some courts do request that a notice of set down (a document stating where and when the divorce will be heard) be served on the defendant personally or by registered post.

When there are children involved, the parenting plan must be endorsed by the Office of the Family Advocate prior to the divorce being heard in court, make sure to phone the Family Advocate and set up a meeting for the discussion about the children.

Step 4

The court clerk/registrar will then allocate a date and the divorce will be set down on the court roll.

The plaintiff must then file a notice of set down for the date and time set by the court clerk/registrar.


 Step 5

On the Court date the only the plaintiff appears in court and a divorce court order will be made by the presiding Judge or Magistrate.

The divorce order can be obtained the same date or the following day but is dependent on how many matters are on the court roll for divorce.

 

FORM DOWNLOAD FOR PLAINTIFF AND DEFENDANT’S


 


 

Natural Fathers Act
Natural Fathers 1997 Act.pdf (296.14KB)
Natural Fathers Act
Natural Fathers 1997 Act.pdf (296.14KB)


 

Summons for Divorce
Summons - Divorce.pdf (106.69KB)
Summons for Divorce
Summons - Divorce.pdf (106.69KB)


 

Annexure A
Annexture A.pdf (50.86KB)
Annexure A
Annexture A.pdf (50.86KB)


 

Annexure B for Family Advocate
Annexures B Family Advocate Request.pdf (14.25KB)
Annexure B for Family Advocate
Annexures B Family Advocate Request.pdf (14.25KB)


 

Settlement Agreement
Settlement Agreement.pdf (47.8KB)
Settlement Agreement
Settlement Agreement.pdf (47.8KB)


 Useful contact numbers

If something unpleasant has happened to you and you need some help or you want to find someone to talk to your parent or parents first.

Also try talking to your teacher or a close adult family member. If none of these people can help try to contact the telephone numbers given on the link below:

Useful numbers

 

Do you find this page helpful:

  Yes   No