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.

What happens to maintenance if the child reaches the age of 18 and she/he is still not self- supporting?

These are the general principles that apply to the maintenance of a child:

·         The Children’s Act defines a ‘child' as a person under the age of 18 years.

·         The parental responsibilities and rights that a person may have in respect of a child, include the responsibility and the right to contribute to the maintenance of the child.

·         The Maintenance Act places a duty on parents to support their child for his or her proper living and upbringing, and includes the provision of food, clothing, accommodation, medical care and education.

·         This duty applies, irrespective of whether a child is born in or out of wedlock or is born of a first or subsequent marriage.

·         This duty of supporting a child is an obligation which the parents have incurred jointly and which is apportioned between them according to their respective means. So, if a dad earns more, he will pay proportionately more maintenance than the mom.

·         The amount payable for maintenance will be determined by the needs of the child and the financial means of the parents.

·         If the biological parents can’t support the child, the obligation can fall to grandparents or the legal guardian of the child to pay maintenance.

·         The payment of maintenance will continue until the child becomes employed or otherwise independent and self-sufficient.

·         However, when the child turns 18, the maintenance payment should be deposited directly to the child’s banking account, unless a court order specifically directs otherwise.

·         Either parent, or the child when he or she turns 18, can approach a maintenance court, to vary the amount that a parent must pay, because of changed circumstances.

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Prescription of municipal debt

On 13 February 2017, in the case of Argent Industrial Investment (Pty) Ltd and Ekurhuleni Metropolitan Municipality, the court had to rule on whether the municipality’s claim for water consumption had prescribed.

The court concluded that if a consumer receives a utility bill reflecting, for the first time, charges older than three years, it cannot be held liable for such amounts, as the charges have prescribed.

It is not the duty of the consumer to read meters and determine their actual consumption. As a result, a consumer will not be considered to have acknowledged a debt when the municipality has failed to provide details.

1.     The Facts:

1.1.       Between September 2009 and March 2015, the applicant (Argent) was charged, and paid, for estimated water consumption. The meter installed at the applicant's premises was not read between 21 September 2009 and 13 March 2015. After the meter was read on 13 March 2015, the applicant was billed R1 152 666.98 for the difference between its actual usage and the estimated consumption for which it had already paid, during the period September 2009 and March 2015, almost six years. The applicant then raised a dispute regarding the charges for usage that had occurred more than 3 years before that date.

1.2.       The applicant did not dispute that it had consumed the water reflected by the meter reading in March 2015. Its only contention was that its obligation to pay for any consumption more than three years before that date had already prescribed by the time the respondent (the municipality) presented the applicant with its invoice.

1.3.       The respondent did not proffer any reason, on the papers, why no meter reading was taken between September 2009 and March 2015.

1.4.       The respondent argued that the consumer is never released from its obligation to pay when the respondent has not issued an invoice or otherwise informed the consumer of the charges which it has incurred (because of several acts, notably the Local Government: Municipal Systems Act, and the Ekurhuleni Metropolitan Municipality Credit Control and Debt Collection Policy 2015/16). Further, that that monthly payments constituted an acknowledgment of debt, and an amount due and payable by a consumer is a consolidated debt, and that any payment into the account will be allocated to that consolidated debt as determined by the respondent.

1.5.       The Prescription Act, 68 of 1969 ("the Prescription Act") provides that:

1.5.1.               a debt is extinguished after the lapse of three years;

1.5.2.               prescription starts to run as soon as the debt is due;

1.5.3.               prescription does not commence to run until the creditor is aware of the existence of the debt, but only if the debtor has wilfully prevented the creditor from becoming aware of the debt;

1.5.4.               a debt is only due when the creditor has knowledge of the identity of the debtor and the facts giving rise to the debt, but if a creditor could have acquired that knowledge by exercising reasonable care, the creditor is deemed to have that knowledge, and

1.5.5.               the running of prescription is interrupted by an acknowledgement of debt or by the issue of process.

1.6.       The respondent relied on section 12(3) of the Prescription Act for the contention that it was only when the meter was read and the invoice issued that the respondent, the creditor, became aware of the facts giving rise to the debt.

2.     The Judgment:

2.1.       The court found that the respondent had a duty to take reasonable steps to collect what was due to it. In any event, the respondent had knowledge of the relevant facts. At all times, the respondent was aware that it was supplying water to the applicant. It was aware of the applicant's identity. It was clear from the fact that the applicant was paying an estimate each month, if from nothing else, that the respondent had not read the meter on the applicant's property. These are the facts giving rise to the debt. The only "fact" of which the respondent did not have knowledge was the exact consumption of the applicant, and this was knowledge within the respondent's reach, had it simply fulfilled its functions.

2.2.       On that basis, it found that the claim over three years only had prescribed, and ordered the respondent to reverse all charges (plus interest and legal fees, thereon) raised before March 2012. It also prevented the respondent from terminating services because applicant had not paid the amounts added to the applicant's account in the invoice of 24 March 2015.

2.3.       The respondent was ordered to pay the costs of the application.

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Image courtesy of ©Alexander Kharchenko

Second hand car dealers and the CPA

What happens if the second-hand car that I just bought turns out to be defective?

You need to distinguish between a private sale (where you buy from someone who does not sell cars every day) and a motor dealer who sells cars in the ordinary course of business.

If you buy a car from a private seller, only the common law will assist and you can’t rely on the Consumer Protection Act (CPA) for help. The protection that you enjoy under the common law is the subject of another article. In short, when you buy something, there is an implied warrantee that the thing sold is free from any defects. It is, however, possible that one can contract out of this implied warranty by inserting a term into the contract that says that the sale is voetstoots (that you buy the goods “as is” [warts and all] and cannot rely on the implied right to defect-free goods and complain later if you find certain defects in the goods).

In the context of buying a second-hand car:

·         The CPA applies to consumers and suppliers of goods;

·         A consumer, is a person who has entered into a transaction with a supplier in the ordinary course of the supplier’s business, to buy a second-hand car;

·         A supplier is a person who supplies second-hand cars in the ordinary course of his business;

·         The CPA contains certain prohibited provisions that prevent a motor dealer from entering into a sale agreement with a consumer that contains provisions that:

o    defeats the purposes and policy of the CPA;

o    directly or indirectly waives or deprives a consumer of a right entrenched in the CPA;

o    avoids a supplier’s duty in terms of the CPA;

o    sets aside or overrides the effect of any provision contained in the CPA;

o    that limits or exempts a supplier of goods or services from liability for any loss attributable to the supplier’s gross negligence.

·         The regulations to the CPA provides that a term that that excludes or restricts the consumer’s rights or remedies against the supplier, or limits the supplier’s obligation to honour his or her obligations, shall be presumed to be unfair and unreasonable;

·         The CPA contains an Implied Warrantee of Quality that in any transaction or agreement pertaining to the supply of goods to a consumer:

o    There is an implied provision that the producer or importer, the distributor and the retailer each warrant that the car is safe and of good quality;

o    The implied warranty is in addition to any other implied warranty imposed by the common law or any other public regulation as well as any express warranty or condition that the consumer has in respect of the goods;

o    This warranty is valid for a period of six months. The six-month period is calculated from the date of delivery of the car to the consumer. During this period, the consumer may return the defective car without penalty and at the supplier’s risk and expense.

o    When a consumer relies upon the implied warranty of quality when returning the car, the consumer has the election as to whether the supplier must repair or replace the car, or whether the supplier should merely refund the consumer the price paid for the car.

o    If the consumer elects that the dealer must repair the car, if within three months of repair the failure or defect is not remedied or another failure or defect arises, the supplier must replace the car or refund the consumer the price paid by the consumer for the car.

o    The implied warranty entrenched in the CPA is in addition to any other implied warranty or condition imposed by the common law or any other public regulation, and, is in addition to any express warranty or condition given by the producer or importer, distributor or retailer.

Car dealers think that they can get out of their obligations under the CPA merely by getting the buyer to sign a contract containing a voetstoots clause. This is wrong.

The only way that dealers can get past the implied warranty is by advising the consumer that the car is being offered in a certain condition. The consumer must then agree to accept the goods in that particular condition. E.g. a motor dealer should explain that the beat-up Volksie is not new, point out the obvious and not-so-obvious defects and if the consumer accepts this, then the sale would be as-is.

The dealer should describe the condition of the goods in specific detail to make it clear in which condition the car is being sold. The buyer then must “expressly agree” to accept the goods. Only if the buyer “knowingly acted in a manner consistent with accepting goods in (a less than ideal) condition” would the implied warranty of quality fall away. Every defect must be described in the contract of sale that the buyer signs.