Divorce

We have decided to get divorced? What is the first thing we should do?

Go for counselling in an attempt to save your marriage. You can also opt to go for mediation; it will assist both you and your spouse to discuss the different legal issues that need to be settled between the two of you.

In many instances marriage can be saved. Sometimes all that is necessary is for a counsellor or a mediator to intervene and put everything into perspective.

What does the Court see as grounds for divorce?

There are only two grounds for divorce:-

  • Irretrievable breakdown of the marriage; and
  • Mental illness or continued unconsciousness of one of the partners

Divorce is not based on fault. This means that it is not important whose fault it is that the marriage has come to an end. A Court may accept any evidence showing that the marriage has broken down irretrievably.

Here are some examples:

  • A spouse moving out of the house.
  • Abuse of any kind towards the spouse or the children.
  • Adultery.
  • Habitual Criminality.
  • A failure to support or provide a home for your family (as long as this is not through circumstances beyond your control).
  • Refusal of marital privileges.
  • Drunkenness or drug addiction.
  • Constant arguing, sulking or nagging.
  • Obsession with a particular religious sect or political group.
  • Loss of love and affection between the spouses.

What will happen to the children?

This must be decided by both parties. If no agreement can be reached, the Court as upper guardian of all minors will make the decision for you, based on the observation and recommendations by the Family Advocate.

How will the property be divided?

If you cannot agree on how the property should be divided, the property will be divided according to the way you were married, (i.e. In Community of Property or Out of Community of Property with or without Accrual System).  The Court has discretion to divide the property when misconduct can be proved against the other party.

How do you obtain a divorce?

  • A High Court, Divorce Court or Regional Court can grant you a divorce.
  • It is possible to conduct your own divorce proceedings but it is advisable to get the help of an attorney, especially to resolve issues such as division of property, maintenance and care of the children.

What will an attorney do for you?

An attorney will be able to assist you with the following legal issues and procedures:-

  • Serving and filing of a summons.
  • Defending a summons.
  • Division of the matrimonial property and other assets.
  • Care, contact and maintenance for the children.
  • Spousal maintenance.

How much will a divorce cost?

Undefended divorces cost less than defended divorces. Attorneys also charge different fees and therefore the cost will differ depending on which attorney you use.

What if you do not want to use an attorney but want to conduct the divorce yourself?

It is advisable to go to the Regional Court or Divorce Court in your area.  They will be able to guide and assist you with your divorce.

Did you know that:

You can now receive your share of pension monies after an order of divorce has been made within 60 days. This includes the ex-spouses of the members of Government Employees Pension Fund (GEPF).

Key.

  • COUNSELLING: a process where a counsellor advises or recommends a solution to your problem.
  • MEDIATION: a process where the partners get together to try and settle the matter with the help of an objective person called a mediator.
  • MARRIAGE IN COMMUNITY OF PROPERTY: both parties have equal rights to deal with the assets and also lay claim to the assets in equal shares. On death or divorce, the marriage will end and the joint estate is divided equally between the two spouses.
  • MARRIAGE OUT OF COMMUNITY OF PROPERTY WITHOUT THE ACCRUAL SYSTEM: the parties draw up a contract in which they indicate that they want the marriage out of community of property. This is termed an Antenuptial Contract (ANC). The ANC can contain any stipulation that is not against good morals.
  • MARRIAGE OUT OF COMMUNITY OF PROPERTY WITH THE ACCRUAL SYSTEM: once the parties decide to be married out of community of property, they can also have the accrual system made applicable to their marriage. The same principles which regulate the out of community of property marriage apply, but at the dissolution of the marriage, either because of death or divorce, the spouse whose estate shows a smaller growth has a claim against the other spouse for an amount equal to half of the difference between the accrual of the respective estates of the spouses.
  • ANTENUPTIAL CONTRACT (ANC): the parties reach an agreement on the patrimonial and financial consequences regarding their marriage. The essential characteristic of a marriage out of community of property is that there is no joint estate. The parties retain their respective estates as their own property and each administers his/her own estate independently.
  • SECT: it is a sub-division of a religion or political group, especially one with extreme beliefs.

How can Legal Eagle help you?

We can give you advice and guide you through the divorce process.  We can also assist with uncontested divorces through our extended services (SIYANDISA).  Legal expenses for divorce are not covered under your Legal Eagle policy.