This article deals with separation, divorce and the divorce agreement (proprietary rights, maintenance, access and custody).
This article deals with separation, divorce and the divorce agreement.
Divorce is a serious step. It can affect the spouses and their children for the rest of their lives. Before getting a divorce, the husband and wife should try to get help from social welfare agencies or marriage counselors.
If a marriage breaks down and the partners do not want a divorce, they can agree to separate. This can be informal – they just agree between themselves on the conditions of the separation. Or it can be a formal separation drawn up by a lawyer. This can be expensive but it is easier to prove later what the partners agreed to.
If the partners later want to divorce, the separation agreement can help them. It shows that there was an ‘irretrievable breakdown’ in the marriage (see below). And the court can use the separation agreement to make the arrangements about property, maintenance, custody and access to the children in the divorce order.
A wife and husband sometimes need time to think about their future. And for religious reasons some people do not believe in divorce. In these situations a separation rather than a divorce is the best solution.
Unlike a separation, a divorce legally ends a marriage. Once a divorce is granted, each partner may legally marry someone else.
There are only two grounds for divorce:
- the ‘irretrievable breakdown’ of the marriage
- the mental illness or continuous unconsciousness of one partner
This means the couple can no longer live together as man and wife. Both partners, or one partner, must prove to the court that the marriage broke down so badly that there is no reasonable chance of getting back together.
Examples of the kind of evidence the court will accept as proof of irretrievable breakdown:
- The couple has not lived together like husband and wife for a period of time.
- One partner had sexual intercourse with somebody else and because of this the other partner finds it impossible to continue living together as husband and wife.
- One partner is in prison after being declared an ‘habitual criminal’. (This means he or she keeps committing crimes, and because of this was sentenced to 10-15 years in prison.)
- One partner deserted the other.
- One partner abused the other, for example the husband keeps assaulting the wife.
- One partner is an alcoholic or a drug addict.
- The partners no longer love each other – they may be too different, or they married when they were too young.
- One of the partners finds it impossible to live together as husband and wife for any other reason.
Mental illness or unconsciousness
The person wanting the divorce must show the court that the other spouse was admitted to or detained in a mental institution. The person must also show that the spouse has been in the institution for at least two years and that the doctors do not think he or she can be cured.
A person can also get a divorce if the other spouse is permanently unconscious. The spouse must have been unconscious for at least 6 months, and the doctor must see no hope of recover.
Ending an African customary marriage
Customary marriages can only end if there is a court order. The same grounds for divorce that apply for civil marriages now apply to customary marriages. In other words if the court agrees that there has been an ‘irretrievable breakdown’ of the marriage then it will agree to dissolve the marriage. The spouses are free to settle on any terms they choose, but the court will make an order regarding the custody and guardianship of any minor children and may make an order for maintenance to be paid, taking into account any arrangement that may have been made in terms of customary law.
In terms of the customary agreement between the spouses, the wife’s family may have to return at least part of the lobola to the husband’s family. If the husband publicly rejects his wife for no reason at all, he will not get any lobola back. But if the husband has what is considered a just reason to reject his wife he may ask for the lobola back.
A husband may be considered to have good reason for rejecting his wife if she neglects her duties in the home, or neglects her children, or denies him sexual intercourse. If the wife sometimes sleeps with another man, this may not be considered enough reason for a man to reject her, but continual unfaithfulness may be considered a good reason for ending the union.
A wife may be considered to have good reason for deserting her husband if he accuses her falsely of witchcraft, or ill-treats her unreasonably or abandons her.
Ending Muslim or Hindu marriages
If a man and woman were married by an imam in the Muslim religion, or a priest in the Hindu religion, but they did not also have a civil marriage, the law says they were not lawfully married. So they don’t need to use the court if they want to get divorced.
Our courts partly recognise Muslim marriages, so for example a Muslim wife can claim from the husband’s estate as his spouse.
The law may change soon to recognise Muslim and Hindu marriages.
The Family Court
The Family Court combines issues of maintenance, children (custody and guardianship), and divorce.
One of the purposes of the Family Court is to make it easier and cheaper for people to get a divorce. In the Family Court people can choose not to have a lawyer or advocate representing them. It costs about R150 if no lawyers are used. The procedures used are also much simpler.
A divorce can be finalised in as little as two weeks if there are no problems involving children. However if there are children, the Family Advocate will have to become involved to make sure that the arrangements for the children are satisfactory. The divorce will then take a bit longer to finalise.
Family Courts have been established as pilot projects in:
- Cape Town, to serve the Western Cape and Free State
- King Williams Town and Port Elizabeth, in the Eastern Cape
- North East Divorce Court in Durban, KwaZulu-Natal
- Central Divorce Court in Ferreirasdorp, Gauteng
Family Courts will hopefully be established in the rest of the provinces.
Custody of the children
Arrangements made at the time of divorce
When a couple gets divorced, they must make a number of arrangements. The woman might have to fight to get a fair deal, especially when it comes to the children of the marriage. The most important arrangements the couple must make are:
- custody of the children
- access to the children
- maintenance of the children
- maintenance for one partner, usually the wife
- dividing up the family property
Custody and maintenance of children are the most important things to arrange. A court will not let a couple get divorced until it is sure that there are satisfactory arrangements for the children. A social worker called a Family Advocate assists the court to sort out the children.
The court must decide which parent will have custody of the children and who will be responsible for the maintenance of the children. The court also decides in what way and how often the other parent can see the children, called access to the children.
Custody of the children
This means care of the children. The law says that children must always have an adult to look after them. The court always thinks hardest about the interests of the children, not just the interests or wishes of the parents. So if the parents can’t agree on who should have custody of the children, then the court looks to see which parent can best look after the children. Often the court asks welfare officers to talk to the parents and then give the court a report. Usually the court gives custody to the mother, especially if the children are very small.
The court can also ask the Family Advocate to hold an enquiry to see what would be in the best interests of the children who are under 21. The Family Advocate could look at guardianship, custody and custody rights.
There is a Family Advocate’s office in each division of the High Court (where divorces are heard). The Family Advocate holds an enquiry and makes a recommendation and report to the court. If the parties don’t settle the matter out of court, then the Family Advocate also goes to court to represent the interests of the children.
One of the parents can also ask the Family Advocate to hold an enquiry. An example: the husband sues for divorce and asks for custody of the children. But the wife also wants custody. Then either of them can complete an ‘Annexure B’ form which asks the Family Advocate to enquire into the problem. You can get an ‘Annexure B’ form from the Registrar of the High Court, a lawyer, Legal Aid or from the Family Advocate.
The Family Advocate does not charge the parent for holding the enquiry.
Divorces take a long time. Sometimes a woman leaves her husband because he is cruel or violent to her and the children. If the woman wants custody of the children while the divorce is happening, she can make an application for interim custody. This means she asks the court to give her custody in the meantime, until the divorce court decides. It will help if she can prove to the court that her husband is bad to the children.
If the woman is really worried that the children are suffering, she can make anurgent application for interim custody. She asks the court to give the children to her quickly.
Sometimes when the mother and father are getting divorced, the father may try to steal the children from the mother. He may demand to see the children, and then refuse to let them go back to their mother. If this happens the woman can also make an urgent application for interim custody, to make her husband give her back the children.
After the divorce, if the court said the mother must have custody, the father may still try to take the children away from her. Then she can ask the court for aninterdict. This is an order to force the father to give the children back to her, and not to steal them again.
The final divorce order can also be taken to a police station. The police may then help the parent who has custody of the children.
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 still regarded as illegitimate, so the mother is also the natural guardian. In terms of civil law the father still has a duty to support his children.
Access to the children
The court usually gives the parent who does not have custody the right to visit the children. This is called access to the children. The court usually gives the parent who does not get custody a ‘right of reasonable access’ to the children. ‘Reasonable access’ usually means that the children spend every second weekend and every second long and short school holidays with the parent who does not have custody.
If the parent asking for custody does not think the other parent should have ‘reasonable access’ to the children, he or she can ask that the access be restricted. The parent with custody of the children must give good reasons why access should be restricted, for example, that the parent abuses the children or has a serious drinking problem and will not look after the children.
If for instance the father gets access, this does not mean that he has the right to see the children in the mother’s home.
Maintenance of the children
Although maintenance for the children is paid to the parent who has custody, maintenance is a right which the children have, not either one of the parents. Parents have a duty to support their children, including children who are illegitimate such as children of Hindu or Muslim customary marriages.
When the court gives one parent custody, it usually also makes a maintenance order. The court usually orders the father to pay maintenance for the children. This is because the father is usually the breadwinner in the family. But the mother must also use her own money to help bring up the children if she can.
Sometimes a husband does not pay maintenance for his wife and children, even though the court said he must pay. Then the wife can go to the Maintenance Courtfor an order against her ex-husband. This order will force him to pay maintenance. It is a criminal offence not to pay.
Maintenance for the wife
Maintenance is often just called ‘support’.
In a marriage, both partners have a duty to support each other and any children. It is usually the woman who takes care of the home and children more than the man. So the wife often cannot earn as much as the husband. Then the husband has a duty to support the wife and children with money to buy the things they need.
If they get divorced, the wife can claim maintenance for herself from the husband, at least until she finds a decent job. She should always claim this money at the time of the divorce. Otherwise she will not be able to claim anything from her ex-husband in future.
The wife and the husband can agree on what amount he will pay her. Or if they cannot agree, she should tell the court what amount she wants. If the court agrees that the wife should get maintenance, then the court will order the man to pay. The woman can always ask the court to increase the amount later, if her needs change.
If the wife earns more than the husband, he can apply for maintenance from her at the time of the divorce.
Because Hindu or Muslim marriages are not fully recognised as legal marriages, the wife has no legal status to claim support after divorce.
Dividing up the family property
This happens in different ways depending on how the marriage took place.
- If the couple were married in community of property
The joint estate is divided into two equal halves. One half belongs to the husband and the other to the wife. If they cannot agree about how to share the property, the court must decide. The court may order one partner to forfeit his or her benefits from the marriage.
- Non-Africans married before 1 November 1984 out of community of property:
Each partner keeps his or her own property. They also take any property which the ante-nuptial contract says they must get. If they cannot agree about how to share the property, again the court must decide. The court can give the wife extra money if she helped to bring up the children or supported the husband in other ways.
- Africans married before 2 December 1988 out of community without an ante-nuptial contract:
Each partner keeps his or her own property. If they cannot agree about how to share it, the court decides.
- Non-Africans married after 1 November 1984 and Africans married after 2 December 1988 out of community of property with an ante-nuptial contract which keeps in the accrual system:
Each partner keeps his or her own property which he or she brought into the marriage. Any increase during the marriage in the value of either partner’s property is shared equally between them.
- Non-Africans married after 1 November 1984 and Africans married after 2 December 1988 out of community of property with an ante-nuptial contract which excludes the accrual system:
Each partner keeps his or her own property. They also take any property which the ante-nuptial contract says they must get. If they cannot agree about how to share the property, the court decides.
A big problem for women is that they might lose their houses when they divorce. There are some things women can do to make sure that they and their children have a place to stay:
If you and your husband buy a house, it is a good idea to have the house put in your name.
Usually the house is bought and registered in the husband’s name. This is a problem, because then most people think that he has a right to keep it if the couple divorce.
But this is not true. If you and your husband bought a house, and you were married in community of property, then you have a right to half of the property of the marriage.
If you are getting a divorce and you will have to look after the children, then you can ask that the house be given to you in the divorce. The father must make sure his children are properly cared for, so the judge will often give the house to the wife.
If your husband keeps the house, you can ask that he pays you out half the value of the house. Or you can ask him to sell the house and give you half the profits.
If two married people rent a house, the house is usually rented in the husband’s name. If you are renting a house and you get divorced, you can ask your landlord to put the house in your name. The landlord will want to make sure that you have enough money to pay the rent, for example that you have a job.
If you are renting from a local council, it is a good idea to get the house put into your name. Often after a divorce or separation a woman does not want to live in the same house, because her ex-husband or ex-boyfriend knows where it is and still thinks he has a right to be there. But it is important that the woman keeps the house, because once she has a house in her name she can apply to the council to swop the house with someone else who wants a different house. If she does not have a house in her name, then she has nothing to use in a swop.