Family Law Clinics

Law with a cause - to the benefit of all South Africans

Luke 18:15-17 “Let the children come to me, do not hinder them, for to such belongs the kingdom of God.”

Things to consider when considering a divorce:

Take a step back and focus on the children.

Since you are contemplating divorce it is very important that your get a good understanding of what you may experience. You do not want to be unprepared or uneducated before making this life changing decision.

Please keep in mind that the more amicable your relationship is prior to and/or during your divorce the more likely you will lessen the emotional and financial burdens caused by ending your marriage.

No matter what perceived wrongs may or may not have happened to you, this is where you are right now and playing the blame game may make you feel better but it is not productive.

Using rational thought instead of playing victim to your own feelings is what is needed most right now.

The more you focus on anger, the more anger you will feel. Focus on the children now instead.

Who has been the primary caretaker?

If you have been a stay at home mom or dad, guess what, you have to go back to work because you won’t collect enough support to keep you accustomed to the life you have gotten used to living.

So if both of you are working then you really get a chance to look at a shared custody situation.

It is hard to raise a child alone. Sometimes you really need a break for your own sake.

10 important questions:

Before you make that trip to the courthouse, there are many things you should ask yourself and consider honestly.

1). Is there any love left? If you can answer yes to this question, even if it's only a miniscule amount, divorce may not be the best option for you. In fact, it's not the best option. Where there is love, there is hope. It may still take an enormous amount of work to heal the marriage, but it will be worth it. Divorcing someone that you still love leaves you broken-hearted and lonelier than you were in the marriage.

2). How will the children be affected, if applicable? Don't deceive yourself into thinking that your children won't be affected by the absence of one parent. There will be a price to pay and your children are part of it. They may have to deal with such emotions as anger, sadness, depression, bitterness, loneliness, and other things that will be extremely difficult for them to know how to cope with.

3). Can I try harder? Most of us have a tendency to give up before we really give it everything we've got. Your marriage is important. Don't give up if there's still more you can try.

4). Am I running away? Is there a problem that could be resolved, but you are avoiding out of fear or stubbornness? Do you feel inadequate to deal with emotional problems that arise and take your escape when they present themselves? If so, you may as well stay and work through them. You'll have to learn sometime if you are ever to have a fulfilling relationship.

5). Will I really be better off alone or with someone else? If you are wondering, consider this: You are only leaving the spouse behind. You and every problem you have are going right out the door with you. The same problems this marriage has will almost certainly afflict any future ones, as well. Again, it's better to work them out now.

6). Is this an emotional decision? Never make the decision to get divorced when you are feeling strong emotions. Anger, hurt, bitterness...these are emotions that will take over your ability to reason and make good choices.

7). Have you communicated your problems with the relationship? Many couples have a great deal of trouble with the simple act of talking to and hearing one another. If you haven't clued your partner in on what's wrong, how can you expect them to help fix the problems?

8). Have you sought counseling? I think the courts should insist upon it before granting a divorce. I bet the numbers would decrease significantly if they did. A counselor can serve as the "middleman" who helps the two of you to come together in love and understanding.

9). Do you have a plan? If you are set on getting a divorce, do you have a plan in place for your own health and well-being, as well as that of any children? This is important. You will have emotional needs and you will also have needs to live, such as income and other resources.

10). What are the problems, really? If you can't answer this fairly quickly, you probably haven't really tried to solve them and they may not even be that big when you get right down to it. One root problem may seem larger because of all the junk that happens and gets piled on because of it, but it is still all just one problem. You may be able to solve it and if so, don't throw your marriage out.

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DIVORCE INFORMATION

divorce

Married couples can dissolve their marriage through divorce. This ends the marriage and the divorced parties can legally marry again.

The divorce process will depend on whether the marriage is a civil marriage or a customary marriage:
1). Civil marriages are dissolved according to the rules and procedures set out in the Divorce Act.
2). 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.
3). 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:
1). primary care of the children ñ custody before the new childrenís act.
2). contact with the children ñ access before the new childrenís act
3). maintenance
4). dividing up property

PRIMARY CARE 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. This is where the Family Law Clinic can assist in helping you determine what is in the best interests of your child which is the most important consideration. 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 care and contact order can be issued setting out who will look after the children while the divorce is being finalised. This is done by way of an application to Court.

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.

CONTACT WITH THE CHILDREN

The parent who is not the primary carer usually still wants contact with their children. There therefore needs to be an agreement about when, where and how this parent will have contact with the children. If it is not in the best interests of the children, then the court can restrict contact or allow contact under supervision.

MAINTENANCE

When a couple gets divorced, one party is often in a better financial position than the other. The person who is primary carer 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-spousal maintenance.

Maintenance for the children is paid to the parent who has care of the child (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. Maintenance will be payable to the other parent until the child becomes a major at the age of 18.

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 for herself after divorce but the duty of support for the children by both parents remains.

DIVISION OF 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:
1). in community of property
2). out of community of property without accrual
3). 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.
1). Dissolving a civil marriage.
2). Dissolving a marriage in terms of African Customary Law.
3). Dissolving a marriage in terms of the Muslim and Hindu religions.

DISSOLVING A CIVIL MARRIAGE

A civil marriage needs to be dissolved by a court.

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. 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. 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. 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:
1). The couple have not lived together for a while.
2). One partner cheated on the other.
3). One partner left the other.
4). One partner abused the other.
5). The couple no longer love each other.

THE DIVORCE PROCESS

If you want to ask the court to issue a divorce you need to prepare a summons dealing with:
1). Who will have care of the children?
2). How the parent who does not have care will access the children.
3). Who will receive maintenance, how much it will be and how and when it will be paid.
4). 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.

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 care 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 respective religions.

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FACTS REGARDING DIVORCE

Before the court will issue a divorce, it has to be decided who will look after the children

In all cases, the father still has a duty to support the children.

The default legal position assumes that everything that you own is shared, including property and debts.

If you and your partner can reach a settlement agreement before the summons is issued, this will make the process much quicker and easier.

A civil marriage needs to be dissolved by a court.

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