The divorce process – what is entailed

A married couple can end their marriage through divorce. The process of the divorce depends on the type of marriage:

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Source: https://www.westerncape.gov.za/service/getting-divorced/

Types of marriages:

·         Civil marriages are dissolved according to the rules in the Divorce Act.

·         Marriages in terms of African Customary Law are dissolved according to the civil law but some of the consequences are determined by custom and tradition.

·         Muslim and Hindu marriages are dissolved in terms of the rites and rituals of the religion.

Check out the acts that apply to divorce and other family law issues: https://goo.gl/fkT3f4

There are several issues that need to be addressed in a divorce, including: 

·         Primary residence (custody) of the children

·         Contact (access) to the children

·         Maintenance

·         Division of property

Custody of the children (Primary residence)

Before the court can allow the divorce to take place, the parents or court will have to decide who takes care of the children. This decision should be in the best interest of the children, and can be investigated by the Family Advocate.

If the divorce is taking a long time, 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, both parents have a duty to support the children.

Access to the children (Contact)

An agreement about when, where and how the parent will have access to the children will need to be made.

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 (deny altogether or make it supervised).

Maintenance

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The court will issue a maintenance order requiring maintenance to be paid for the children.

If there are problems with maintenance after the divorce has gone through, these can be taken to the Maintenance officer at the Magistrate's 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 property 

How the family property will be divided depends on what property regime the couple adopted when they got married. This will usually be covered in the antenuptial 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 the marriage is out of community of property without accrual, then each person keeps their own property from before the marriage and keeps whatever they earn or acquire during the marriage. Some things, like inheritances or gifts remain separate.

The default property regime has changed for different people at different times. The laws that were in place when you got married will determine what property regime applies to your marriage.

Ending a marriage

·         Ending a civil marriage

·         Ending a marriage in terms of African Customary Law

·         Ending a marriage in terms of the Muslim and Hindu religions

·         DIY divorce

·         Default divorce

·         Mediation

Ending a civil marriage

A civil marriage needs to be dissolved by a court.

You are only entitled to a divorce if you can prove to a court that you and your spouse can no longer live together and there is no chance of resolving your differences.

If one of the spouses is mentally ill or continuously unconscious, this is also a valid reason for a divorce.

Proof of this can include evidence showing that:

·         The couple have not lived together for a while.

·         One partner cheated on the other.

·         One partner left the other

·         One partner abused the other.

·         The couple no longer love each other. You can get a divorce if your partner has been institutionalised for mental illness for at least two years and doctors don't think that they will ever recover.

If you want to ask the court to issue a divorce you need to prepare a summons dealing with:

·         Who will have primary residence (custody) of the children.

·         How the parent who does not have custody will have contact (access) to the children.

·         Who will receive maintenance, how much it will be and how and when it will be paid.

·         How your property will be divided up.

If you and your partner can reach a settlement agreement before the summons is issued, this will make the process much quicker and easier. If you reach an agreement, you should write it down and sign it. This consent paper should then be attached to the divorce summons.

A hearing date will be set. At this hearing, the judge will ask questions to confirm the information in the summons. Once everything is settled, a divorce order will be granted.

If you use the Family Court instead of a High Court your divorce may go through more quickly and more cheaply.

Ending a marriage in terms of African Customary Law

Customary marriages are similar to civil marriages in that the court must issue the divorce order and the divorce will only be granted if there are grounds for divorce (that is irretrievable breakdown, mental illness or continuous unconsciousness).

The parties can decide the terms of the divorce and then the judge will issue the relevant orders regarding custody and maintenance. If the court has to decide on these matters it will take into account any arrangements that may have been made in terms of customary law.

The wife's family may have to return all or part of the lobola to the husband's family, unless the husband publicly rejected his wife for no reason at all.

Ending a marriage in terms of the Muslim and Hindu religions

If a man and woman were married by an imam in the Muslim religion or a priest in the Hindu religion, they are not married in terms of civil law. They can then divorce without going to court but they must follow the rules of their religion.

DIY divorce

You can get a divorce on your own. There are many law firms that offer online services that can help you get a divorce. They will assist you with legal documents and the divorce process.

Default divorce

A default divorce is similar to an uncontested/unopposed divorce. This works when your partner does not respond at all to the divorce.

·         Your partner will receive a summons with a date. The date is a time frame for them to respond.

·         If they do not respond, you can apply at the High Court, to add it to the roll.

·         The court will decide on his/her behalf and end your marriage. 

Mediation

Mediation is when a third party helps you and your partner reach an agreement. He/she will have a legal background.

·         The mediator will listen to both sides and give possible solutions.

·         They will help you to reach an agreement on custody of your children and dividing your property.

·         You will write a settlement, with their help, and sign it.

·         One partner will be the defendant and the other the plaintiff.

·         The defendant will receive the summons and settlement agreement.

·         The plaintiff will go to court and request to have the case added to the high court roll.

·         When the case is added, the divorce will be concluded.

Documents you will need

·         Your official South African identity document

·         Marriage certificate

·         The court or law firm will provide any other documents

When you apply for a divorce, you will need to get a summons, a document that orders you to be at court. There may also be a divorce settlement attached to the summons.

The emotional effects of a divorce

A divorce may be an emotionally draining process and these steps can help you to recover.

During your divorce, you may experience many emotions. You may not experience all of these emotions, but get help from a counsellor to help you work through them.

·         Denial
During this stage, you may deny what has happened to you and pretend to be "fine" or believe that you are "okay". 

·         Anger
If you have bottled up your feelings, you'll experience anger. This stage often follows denial as you begin to realise what has happened. You may blame your partner or be angry at yourself.

·         Bargaining
 "If only I could go back and do that differently". These feelings leave you feeling guilty as you may wish you had done things differently.

·         Depression
This is a dangerous stage and can last for months or years. You can lose all hope and feel that there is no point to life. 

·         Acceptance
When you accept things, you will be able to move on. This only happens after you have received help.

Getting help

You do not need to get through your divorce on your own. There are many organisations and qualified people who can help you. Try Families South Africa (FAMSA). The organisation is an NGO that deals with divorce counselling and provides support for families. You can contact them on 021 447 7951.