Source: A simple guide to South African Family Law by Nthabiseng Monareng
Causes of divorce
There are many reasons for people deciding to divorce, but only two are recognized in South African law.
Irretrievable breakdown of the marriage
When a marriage has broken down irretrievably, this means that the couple can no longer live together as husband and wife. Their relationship has become so bad that they must separate.
Examples of irretrievable breakdown
· The spouses have not lived together as a married couple for a period of time.
· A spouse has had sexual relations with someone else and the other spouse finds it difficult or even impossible to continue with the marriage relationship.
· The marriage is abusive.
· A spouse is an alcoholic or a drug addict.
· The parties no longer love each other.
· Any other circumstances where a spouse makes it impossible to continue with the marriage.
Mental illness or unconsciousness
· When a spouse has been admitted to a mental institution.
· When a spouse is permanently unconscious.
· The spouse who files for a divorce is called the plaintiff and the other spouse is called a defendant.
· A spouse who files for a divorce and who does not have a lawyer to represent him or her has to go to court and inform the registrar or the clerk of the court that he or she wants to file for a divorce. The clerk will give the spouse forms to complete.
· These forms consist of a summons, with particulars of claims attached, and a statistics form.
· In the particulars of claims, a spouse has to write the reasons for filing for a divorce.
· The last page consists of the prayer section. Here a spouse has to state what he or she is claiming, for example, a decree of divorce; division of the joint estate; forfeiture of benefits; redistribution of assets; access; custody; or maintenance.
· If the spouse does not have a lawyer to assist him or her, that spouse may request the registrar or the clerk to assist them in preparing the documents required.
· Once the forms have been completed, three copies have to be made and given to the registrar or clerk of the court. The registrar or the clerk will stamp all copies and allocate a case number.
· The registrar or the clerk will keep one copy, and hand the original to the plaintiff and another copy to the sheriff.
· The sheriff will serve the summons on the defendant and hand over the original and copy of the Return of Service at court.
· Once the defendant has been served with the summons, he or she has a choice of either defending the divorce or not.
· A defendant has one month to file a notice of intention to defend the divorce. This notice is then served on the plaintiff.
· If the defendant chooses not to defend the divorce, he or she can just ignore the summons. There is then a strong possibility that during the hearing the plaintiff will be given whatever he or she claimed , if the presiding family magistrate is satisfied that this is in order.
· If the defendant decides to defend the divorce, he or she must, within 10 court days after filing and serving the notice of intention to defend, complete a document, called the ‘plea’. In the plea, the defendant states his or her objections to the summons and what he or she wants to claim from the other spouse.
· The plea will be served on the plaintiff. The plaintiff can counter-claim.
· After all the documents have been filed in court, a date for the divorce hearing will be set, when both parties will appear in court.
· On the hearing day, the divorce will be finalized.
· The divorcing spouses have to wait at least a month before they get the divorce decree.
· If a spouse wants to file for a divorce in the High Court, it is advisable to consult an attorney, especially if children are involved or the divorce involves a large estate.
· The attorney will draft the summons, and have it served at court. The attorney will appoint an advocate to represent you in court. Only when a lawyer has a right to appear in the High Court can that lawyer represent you.
Entitlements after divorce
Forfeiture of patrimonial benefits
This is a claim made by a spouse who feels that he or she has made a bigger financial contribution in the marriage than the other spouse, and that it will be unfair if the other spouse receives half or a portion of his or her estate.
Forfeiture of benefits can be claimed when:
· One of the spouses did not contribute financially to the marriage or made a smaller contribution towards the acquisition of the assets. This usually happens when that spouse is responsible for the breakdown of the marriage.
· The other spouse contributed more in the marriage and acquired most of the assets.
· The circumstances must show that it will be unfair if the other spouse benefits from the assets he or she did not help in acquiring.
The court will take the following into account when deciding whether to grant forfeiture of benefits or not:
· The duration of the marriage.
· Circumstances that led to the breakdown of the marriage.
· Any substantial misconduct on the part of either spouse.
The courts are not willing to order forfeiture of benefits unless there are good reasons
why the other spouse should not benefit.
Sharing of assets and debts
· Spouses who are married in community of property share the matrimonial assets and liabilities equally, unless a forfeiture order has been made.
The spouses can enter into a settlement agreement and decide between themselves how they are going to share their estate. It is advisable to have an attorney present when drafting a settlement agreement.
Difference between separation and divorce
When married spouses separate but they do not get a divorce, the law will not recognize this separation. For example, a husband leaves and moves in with a girlfriend. He stays with the girlfriend for ten years without divorcing his wife. When the husband dies, the law will recognize only his wife as the legal spouse. This means that the wife will inherit all his assets, even those that the husband acquired while living with the girlfriend.
The position will be different if the husband has made a will and left his assets to the girlfriend.
If you and your husband are separated and there is no possibility of the marriage continuing, it is advisable to file for a divorce. This will legally end the marriage.
Custody of and access to children
The divorce will not be finalized until arrangements regarding minor children have been made. The couple need to decide on custody, access and maintenance of the children.