DIVORCES AND DECISIONS – HOW TO GET A DIVORCE

by Sherese Moonsamy
22nd Apr 2020

DIVORCES AND DECISIONS – HOW TO GET A DIVORCE

If you have decided to get a divorce, the correct procedure needs to be followed and a number of factors need to be addressed.  These include the division of property and, if applicable, acting in the best interests of your children with regard to custody, access and maintenance. 

A marriage can only be dissolved by order of the court.  A divorce will be granted where one of the parties believes that there has been an irretrievable breakdown of the marriage relationship and there is no reasonable prospect of restoring it.  This means that a marriage can be dissolved even if your spouse does not want to get divorced.

A divorce action is instituted by issuing summons which is then served personally on your spouse by the sheriff of the court.  You can get divorced either in the Regional Court or the High Court having jurisdiction.   A court will have jurisdiction in a divorce if one or both parties are domiciled or ordinarily resident within the area of jurisdiction of the court on the date on which the action is instituted. 

An unopposed divorce entails the parties agreeing on the terms of the divorce and consequently signing a settlement agreement. The plaintiff appears in court and a comprehensive settlement agreement and parenting plan (endorsed beforehand by the Office of the Family Advocate) may made an order of the court.  This is a faster and more cost-effective avenue compared to an opposed divorce which may proceed to trial.

The division of property upon the dissolution of marriage is determined by the applicable marital regime. There are three marital regimes in South Africa:

1. Marriage in community of Property;

2. Marriage out of community of property without accrual; and

3. Marriage out of community of property with accrual.

The parties must enter into an antenuptial contract prior to the date of their marriage. If the parties did not enter into antenuptial contract, the default legal position is that civil marriages and civil unions are in community of property.  This means that everything you own before and after marriage forms part of a joint estate and this is inclusive of both assets and liabilities.

Before the court will grant a divorce, parents may agree on care and contact of the minor children.  A decision will also need to be made on when, where and how the other parent will have contact/ access to the children. If there is any dispute regarding the care and contact of minor children, the parties will have to attend an enquiry at the Office of the Family Advocate. The Office of the Family Advocate is a state body who may give written recommendations to the Court as to what is in the best interests of minor children.

Both parents have a duty to support the children according to their respective means.  The court can issue a maintenance order which requires maintenance to be paid for the children but whether spousal maintenance and support is required depends on the circumstances. 

If there is a dispute in respect of any aspect of the divorce, a mediation is advisable.  An independent and qualified third party is appointed as Mediator to attempt resolve disputes and to facilitate a settlement agreement prior to obtaining a divorce.  The mediation process is without prejudice and the settlement agreement and parenting plan is then attached to the summons and the divorce process can commence.  Every aspect of divorce can be mediated and mediation can also be agreed to after legal action has been instituted.  Mediation saves costs and reduces the burden on the court and the new Rule 41A of the High Court prescribes that parties must attempt mediation before proceeding to litigation.  Mediation can be terminated at any stage by either party or by the Mediator if the process is no longer productive or conducive to reaching settlement.

If the parties do not enter into an agreement, the matter will go to trial and the Court will grant an appropriate order after hearing the evidence of both parties. The trial process is costly and could take up to 2 – 3 years to finalise.

Kindly note that the above is merely a summary of the current legal position and you should seek the advice of a legal practitioner prior to instituting divorce proceedings as each case may differ.

Should you have any enquiries please do not hesitate to contact us.

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