Divorce In South Africa – The Law
No-fault Divorce
In South Africa, we have ‘no fault’ divorce. There is no need to prove the other person to have committed sinful acts, in order to get a court order to terminate a marriage. We operate on the ‘breakdown’ system – if the relationship has reached such a state of disintegration that there is no longer any prospect of the restoration of a normal marriage relationship, the judge may grant a decree of divorce.
Courts
A summons must be issued through the relevant court. The ‘Plaintiff’ issues a summons against the ‘Defendant’ and the case goes to trial. If there is no defence, the ‘trial’ is a very brief affair, in which the judge (in the High Court) or magistrate (in the Divorce Court) must be satisfied that the marriage has in fact broken down and that the best possible arrangements have been made for the children, before granting a decree of divorce. How do you know which court to go to? Read the articles in Divorcelink.
Do You Need A Lawyer?
It is best to obtain legal advice before proceeding with a divorce – the law is not simple and you may lose valuable rights unless they are secured at the time of divorce.Children and Divorce
Usually, the court granting a decree of divorce will also make an order for the custody (daily care) of the children to be awarded to either the mother (most likely) or the father (less likely, but increasingly) after the marriage. In proper cases, the court can award joint custody to both parents. (See more on this topic on the Divorcelink site).
Proprietary Claims
With the dissolution of the marriage, the parties may have a dispute over the assets of the matrimonial home and those they possess jointly or seperately. Whether they have valid claims or not, will depend in how they were married to one another – in or out of community of property, subject to the accrual system or not. If they can agree on how to split the assets, their agrement may be made an order of court. If they cannot agree, the court may have to make a decision or appoint someone to attend to the division of the joint estate. Find out more on the Divorcelink site.