The conclusion of a marriage is usually a blissful experience for most people, as it announces the beginning of the newly-weds’ life together in celebration of their marital union. With optimism abound, the hope is that much as the never-ending circle of the wedding rings, so should be the lifespan of the union till death separates them.
Unfortunately however, most marital relationships experience turbulent challenges due to various reasons from all forms of abuse, infidelity, disrespect, disagreements, not sharing the same vision anymore, to loss of affection and love. In as much as other marriages survive these challenges, some couples end up having no choice but to end the marriage.
This article will tackle some of the most prominent questions with regards to divorce in South Africa, in order to assist parties who may be lacking an idea on where to start even though it is an option they have thought best to pursue.
- Which legislation governs divorce in South Africa?
The primary legislation that governs divorce in South Africa is the Divorce Act 79 of 1970 (as amended). It contains provisions which deal with various aspects pertaining to divorce. However there are other pieces of legislation that come into the fray being the Marriages Act 25 of 1961 and the Recognition of Customary Marriages Act 120 of 1998 which first establish if indeed a valid marriage exists in the first place and if so, the Matrimonial Property Act 88 of 1984 then decides how the division of the matrimonial property will be done. These Acts play an important role during divorce proceedings.
- What are the grounds for divorce in South Africa?
According to Section 3 of the Divorce Act, there are only two grounds for divorce recognised by the law. These grounds are:
- Irretrievable breakdown of the marriage (section 4); and
- Mental illness or continuous unconsciousness of a party to the marriage (section 5)
Irretrievable breakdown of marriage refers to a situation where the Court is satisfied that the marriage has reached such a stage of breakdown that there are no reasonable prospects of the marriage being restored to a normal marriage relationship. As mentioned in the introduction of this article, the reasons are various why a marriage may reach such a state (from all forms of abuse, infidelity, disrespect, disagreements, not sharing the same vision anymore, to loss of affection and love).
- Which matters/issues are decided during divorce proceedings?
Besides making an inquiry if the grounds of divorce as mentioned in section 3 above have been satisfied before granting a Decree of Divorce, upon being invited to do so, the Court will also decide on issues such as spousal maintenance as provided in section 7 (1) (2) of the Divorce Act, child custody and child maintenance as well as the division of the matrimonial property depending on the matrimonial property system governing the marriage as per the Matrimonial Property Act 88 of 1984 (in Community of Property, Out of Community of Property, Accrual system).
In the event that parties are not agreeing on the aspect of child maintenance, the parties will be encouraged to approach the Maintenance Court to have the issue dealt with there, and the Divorce Court will finalise the divorce matter.
- How do I control the costs of divorce?
It is best to seek legal representation once you decide to divorce. The attorney will advise you with regards to an estimate of the costs that will be involved in the divorce case. The attorney may not be able to give you an exact figure because some of the work that will be done cannot be anticipated beforehand, and will depend on how the other side responds on each stage which may result in the matter taking longer, shorter, or having more work involved.
As part of efforts to keep the costs down, at Burger Huyser Attorneys we explore the option of facilitating and reaching a settlement with the opposing side. This is a process whereby parties settle out of court, so that once all the issues in dispute are settled the matter may proceed quicker and without hassles at court. This significantly reduces costs of the divorce unlike a contested divorce.
- I have decided to divorce, what is the first step?
The first step is to approach your attorney to initiate the proceedings by issuing the divorce summons. In the event that one can by no means afford legal representation, the party may approach the Registrar of the Regional Court (Divorces) at the Magistrate’s Court nearest to where either of the parties ordinarily resides, who will assist.
At Burger Huyser Attorneys we are committed to ensuring that your interests are protected until the finalisation of the divorce. We assist with Family Law matters amidst a wide array of other specialist legal services. Our attorneys are capable, able and professional whilst our committed approach is comprehensive.
Contact us to set up an appointment with one of our attorneys.
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