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Divorce

If spouses are having marital problems, they can either try to save the marriage through counselling or if there is no chance of saving the marriage, they can decide to get divorced.

When can spouses get a divorce?

  • There are only two grounds for divorce, namely the:
    • irretrievable breakdown of the marriage; or
    • mental illness or continued unconsciousness of one of the spouses.
  • Examples of the irretrievable breakdown of a marriage as a ground for divorce include:
    • the spouses not living together for a continuous period of one year;
    • abuse towards the spouse or the children;
    • adultery;
    • habitual criminality;
    • drunkenness or drug addiction; or
    • loss of love and affection between the spouses.
  • Divorce is not based on fault and it is not important who caused the marriage to end.

What will happen to the children upon divorce?

  • Arrangements regarding the children born from the marriage, such as with whom the children will stay after the divorce and maintenance, can be agreed upon by both spouses.
  • If no agreement can be reached between the spouses, the court will make the decision regarding the children after considering the circumstances of the matter, together with the observation and recommendations by a Family Advocate.

How will the property be divided upon divorce?

  • Division of property can be agreed upon by both spouses.
  • If no agreement can be reached between the spouses, the property must be divided according to whether the spouses were married in community of property or out of community of property (with or without the accrual system).
  • The court has a discretion to divide the property in any manner it deems fit when misconduct can be proven against one of the spouses. For example, if one spouse abused the other spouse and such abuse is the cause of the divorce, the court may decide to divide the property in such a way that the abusing spouse gets less than what s/he would have been entitled to.

How can a person get a divorce?

  • Only a High Court or Regional Court can grant a divorce.
  • A spouse who wants to get a divorce starts the procedure by serving a summons on the other spouse.
  • The other spouse can either agree to the divorce or defend the divorce.
  • A professional, such as an attorney, will be able to assist a spouse with the following:
    • serving and filing of a summons;
    • defending a divorce;
    • division of the property;
    • care, contact and maintenance in respect of the children; and/or
    • spousal maintenance.

GLOSSARY OF TERMS:

FAMILY ADVOCATE: an institution that assists with family matters, such as divorces, and makes recommendations in respect of children’s best interests.

MARRIAGE IN COMMUNITY OF PROPERTY: there is one estate between a husband and a wife. Property and debts acquired prior to or during the marriage are shared equally in undivided shares (50%). Both spouses are jointly liable to creditors. This marital regime automatically comes into existence unless another regime is selected.

MARRIAGE OUT OF COMMUNITY OF PROPERTY WITHOUT THE ACCRUAL SYSTEM: the spouses have their own estates which contain property and debts acquired prior to and during the marriage (“what is mine is mine and what is yours is yours”). Each spouse is separately liable to his/her creditors. Prior to the marriage, an ante nuptial contract must be entered into to indicate that the marriage will be out of community of property.

MARRIAGE OUT OF COMMUNITY OF PROPERTY WITH THE ACCRUAL SYSTEM: this is identical to a “marriage out of community of property” but the accrual system will be applicable. The accrual system is a formula that is used to calculate how much the larger estate must pay the smaller estate once the marriage comes to an end through death or divorce. Only property acquired during the marriage can be considered when calculating the accrual. The accrual system does not automatically apply and must be included in an ante nuptial contract. 

PROPERTY: all assets owned by a person, such as a house, vehicle and money.

How can LegalWise assist you?

Should you require an explanation of your rights on this topic, please contact your nearest Branch.


How can LegalWise assist you?

Should you require an explanation of your rights on this topic, please contact your nearest Branch.

DISCLAIMER:

The information contained on this website is aimed at providing members of the public with self-help guidance on the law. The information applies to South Africa, unless it is specifically stated that the information applies to another country. Although LegalWise has tried to ensure that the information is accurate and current, it is important to remember that the law constantly changes. And, although LegalWise has tried to provide information of a high quality, we cannot guarantee that the information will be updated and/or be without errors or omissions. As a result, LegalWise, its employees, agents or representatives will under no circumstances accept liability or be held liable for the consequences resulting from, the use of or the inability to use the information, or, any negligence by us relating to the information so used. The information contained on this website has not been provided to meet the individual requirements of a specific person and we insist that legal advice be obtained relating to a person’s unique circumstances.