Source: Department of Home Affairs
The divorce process will depend on whether the marriage is a civil marriage or a customary marriage. Civil marriages are dissolved according to the rules and procedures set out 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 Hindi marriages are dissolved in terms of the rites and rituals of the religion.
There are a number of issues that need to be addressed in a divorce, including
· custody of the children
· access to the children
· dividing up property
CUSTODY OF THE CHILDREN
Before the court will issue a divorce, it has to be decided who will look after the children. The parents can make an agreement or the court can decide.
The most important consideration in deciding which parent should have custody is the best interests of the children.
The Family Advocate at the court can help investigate which parent is in the best position to look after the children and will represent the children in the court if necessary.
If the divorce is taking a long time, for example if the parties don’t agree, then 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, the father still has a duty to support the children.
ACCESS TO THE CHILDREN
The parent who does not get custody will usually still want to see their children. There therefore needs to be an agreement about when, where and how this parent will have access to the children.
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.
When a couple gets divorced, one party is often in a better financial position than the other. The person who has custody of the children will also have expenses that the other parent does not have. The court will issue a maintenance order requiring maintenance to be paid for the children and, depending on the circumstances, to the other party.
Maintenance for the children is paid to the parent who has custody (but it is important to remember that this is the child’s right and not the parent’s). All parents have a duty to support their children, including children who are illegitimate.
If there are problems with maintenance after the divorce has gone through, these can be taken to the Maintenance officer at the Magistrates 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 UP PROPERTY
How the family property will be divided up depends on what property regime the couple adopted when they got married. This will usually be covered in the ante-nuptial 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 you sign an ante-nuptial agreement, you can choose to get married:
· in community of property
· out of community of property without accrual
· out of community of property with accrual.
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.
If the marriage is out of community of property with accrual then each person keeps their own property from before the marriage but anything that is accumulated during the marriage is shared. 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.
DISSOLVING A CIVIL MARRIAGE
A civil marriage needs to be dissolved by a court.
Grounds for divorce
You can only get a divorce if you show the court that there has been an “irretrievable breakdown” of the marriage or that one of the spouses is mentally ill or continuously unconscious.
Irretrievable breakdown means that the couple can no longer live together and there is no reasonable chance of them resolving their differences. 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.
You can get divorced if your partner has been unconscious for at least six months and doctors don’t believe that they will ever recover.
The divorce process
If you want to ask the court to issue a divorce you need to prepare a summons dealing with:
· Who will have custody of the children.
· How the parent who does not have custody will access 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.
DISSOLVING 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.
DISSOLVING 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 the civil law. They can then divorce without going to court but they must follow the rules of their religion.