11 October | 2024

Let's Talk Law - The A, B, C's of Divorce

Divorce, though often unavoidable, can be a daunting and emotionally challenging experience. Understanding the fundamental principles and procedures governing divorce in South Africa can help alleviate some of the uncertainty.

Divorce proceedings can be initiated in either the High Court or the Regional Court, as a marriage can only be legally dissolved through a court order. The spouse seeking to end the marriage does so by serving a summons to the other spouse. The receiving spouse then has the option to either oppose the divorce, or not.

Will my marriage be recognised in South Africa?
The Divorce Act 70 of 1979 recognises three types of marriages in South Africa:
1. Civil Marriages, whether In Community of Property or Out of Community of Property;
2. Civil Unions;
3. Customary Marriages.

The Department of Home Affairs oversees the solemnisation and registration of these marriages.

What are the grounds recognised for the dissolution of my marriage?
Section 3 of the Divorce Act 70 of 1979 (‘the Act’) ascertains and regulates the grounds recognised for the dissolution of a marriage, these being:

1. 1. The irretrievable breakdown of the marriage (Section 4):
   Section 4 of the Divorce Act outlines circumstances that a court may accept as proof of the irretrievable breakdown of a marriage. These include:
   1.1. Spouses not living together for at least one year before issuing a divorce summons;
   1.2. The defendant committing adultery, making reconciliation impossible for the plaintiff;
   1.3. The defendant’s habitual criminality resulting in imprisonment.
   
   The court may also consider other factors such as failure to provide support or care, refusal of marital privileges, assault, addiction, extreme religious or political obsession, or inappropriate relationships. If the court believes reconciliation is possible through counselling, it may postpone proceedings.

   
   

2. 2. Mental illness or continuous unconsciousness (Section 5):
   Section 5(1) of the Divorce Act allows a divorce to be granted on the grounds of mental illness if the defendant:
   2.1. Has been admitted to an institution under a reception order;
   2.2. Is detained as a state patient or mentally ill prisoner;
   2.3. The defendant must not have been unconditionally discharged for at least two years, and two psychiatrists (one appointed by the court) must confirm no reasonable prospect of recovery.
   
   Section 5(2) allows divorce if the defendant has been in continuous unconsciousness for at least six months, with evidence from two medical practitioners (one a neurologist or neurosurgeon) confirming no chance of regaining consciousness.

What are the procedures regarding my divorce?
The procedure for a divorce action, as stated in Section 11 of the Act, will follow the rules of court as prescribed and updated from time to time and as of yet typically involves:
1. Filing a divorce summons;
2. Serving the summons on the spouse;
3. Receiving a response or default judgment;
4. Settlement negotiations or trial;
5. Court judgment and divorce order.

What will happen to our children when the court orders the divorce?
Arrangements for child care (previously known as ‘custody’) and maintenance of children from the marriage can be agreed upon by both spouses. According to Section 6 of the Act, a divorce decree will not be granted unless the court is satisfied that adequate provisions have been made for the welfare of any minor or dependent child.

If the spouses cannot reach an agreement, the court will decide based on the circumstances, along with the recommendations of a family advocate. In practice, the spouses and children will consult with the family advocate and a social worker, after which a report with recommendations will be submitted to the court, focusing on the best interests of the child.

How will our assets be divided upon our divorce?
In South Africa, the marital regime determines how assets will be divided during divorce. If the spouses reach a written agreement, the court can issue an order regarding asset division. If no agreement is reached, the division depends on whether the marriage was in community of property or out of community, with or without the accrual system. In some cases, a spouse may be entitled to a share of the other spouse’s pension, which depends on the specific circumstances, including the marital regime.

An unopposed divorce can typically be finalised within two months. This involves the spouses agreeing on terms, entering a deed of settlement, and having a summons served by the sheriff. After 10 days, a court date is set, and only the plaintiff needs to testify. If the court is satisfied, the divorce will be granted. In an opposed divorce, the process takes much longer, often over a year.

Key Considerations:
- Maintenance: Spousal and child support
- Child Care: Shared or sole care arrangements
- Division of Assets: According to the marriage regime
- Mediation: Alternative dispute resolution

Conclusion
Divorce in South Africa involves complex legal principles and emotional challenges. Understanding the marriage regimes, grounds for divorce, and procedures can facilitate a smoother process. It's essential to consult with a qualified attorney for personalised guidance.