If you are reading this article the likelihood is that you are, or know someone who is, either considering divorce, instituting divorce proceedings or is currently engaged in divorce proceedings. Some psychologists have noted that the emotional process of a divorce is so difficult that it is second only to the death of a life partner. Having said that divorce is an emotional process, and bearing in mind that in South Africa over 20 000 divorces on average are processed annually, it is the writer’s view that an explanation of the legalities and processes of a divorce could be beneficial to the public.
1) GROUNDS FOR DIVORCE:
Prior to the promulgation of the Divorce Act, 70 of 1979 (“The Act”), there were only two common law grounds for divorce in South Africa, namely adultery and malicious desertion. Two additional grounds were introduced in 1935 by the Divorce Laws Amendment Act, namely incurable insanity for not less than seven years, or imprisonment of the defendant spouse for at least five years after such spouse has been declared to be a habitual criminal. These grounds were eventually found to be restrictive and ultimately not in the interests of justice.
Since the promulgation of the Act South African law has adopted a no-fault divorce system. This basically means that parties can get divorced without the need of proving that one or both have acted improperly or committed a fault in respect of the marriage.
The Act now provides for the following grounds for divorce:
- Irretrievable break-down of marriage;
- Mental illness; and
- Continuous unconsciousness.
The majority of cases are dealt with on the basis of Section 4 of the Act which states that ”a court may grant a decree of divorce on the ground of irretrievable break-down of a marriage if it is satisfied that the marriage relationship between the parties to the marriage has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between them.”
The effect of these broad grounds for divorce and the no-fault system basically means that if parties wish to get divorced, they can, provided they demonstrate that their relationship has no prospect of ever being restored.
2) WHAT DOES A DIVORCE DEAL WITH?
When parties get divorced, there are various aspects that must be dealt with for an order of divorce to be granted, these include but are not limited to the following:
- Changing legal status from “married” to “divorced”;
- Division of a Joint Estate (If married in community of property);
- Accrual Claims (if married out of community of property with the Accrual System operating);
- Division of debts incurred during the subsistence of the marriage;
- Division of assets (generally);
- Primary care and residence of minor children;
- Maintenance for minor children;
- Contact rights to minor children;
- Spousal Maintenance (rehabilitative or otherwise);
- Pension Funds and Retirement Annuities; and
- Forfeiture of marriage benefits.
3) WHICH COURT CAN MAKE AN ORDER OF DIVORCE?
Prior to October 2010 only a division of the High Court of South Africa could make an order for divorce which had partially been the reason for High Court rolls being flooded with cases and many raised criticisms about using the High Court’s legal expertise to decide matters which do not necessarily require such legal expertise.
To address this and provide greater access to justice to the public, the Jurisdiction of Regional Courts Amendment Act came into effect in October 2010, and provided that any Regional Magistrates’ Court now has the authority and jurisdiction to deal with matters involving the nullity of a marriage or divorce.
Basically, in accordance with current South African law, any party who wants to institute divorce proceedings may institute them either in a division of the High Court or Regional Magistrates Court.
4) THE PROCESS:
The process of divorce commences with the issuing of a Summons at a court with the relevant jurisdiction to deal with the divorce. In terms of the Divorce Act, 70 of 1979, this is generally a court in whose area of jurisdiction either party to the divorce resides.
Once a Summons has been issued, it must then be personally delivered to the other party by the Sheriff of the Court. Due to the requirement that a divorce Summons must be personally served on a party, service of the Summons can take some time.
Once Summons is served the other party has ten court/business days in which to give Notice of their intention to defend the Summons and thereafter a further twenty court/business days in which to serve and file their Plea and/or Counterclaim to the divorce Summons.
If no Plea and/or Counterclaim is served and filed within the afforded times, the issuing party can apply for a default judgment and obtain a divorce.
In the event that a Plea and/or Counterclaim is served and filed, the parties will have to comply with the remaining rules of court to enable the divorce to proceed to trial.
At the trial the judge or magistrate will take all relevant evidence into account and make an order of divorce. Depending on the circumstances and the parties, this process may take a minimum of six months and can even be prolonged for years.
5) THE SETTLEMENT AGREEMENT:
The majority of divorces are granted on the basis that the parties to the divorce have concluded a Settlement Agreement which governs and deals with the terms and conditions between the parties in respect of their divorce.
Settlement Agreements are, in the writer’s view, the best vehicle to obtain divorce, orders as they avoid unnecessary and costly litigation.
A Settlement Agreement can be concluded provided that the parties are able to negotiate and agree on an amicable resolution to their disputes in respect of a divorce. It must be stressed however that the nature of a Settlement Agreement means that both parties must agree on all terms and conditions, and neither party can force the acceptance of the other.
If the conclusion of a Settlement Agreement is possible, parties must always be cautious and aware that in majority of cases, a Settlement Agreement will be in full and final settlement of all issues between the parties arising out of their marriage and the dissolution of the marriage, and that no further claims will be available after the Settlement Agreement is concluded.
A concern is always raised by a party seeking a divorce in respect of the costs involved with obtaining a divorce order.
While there is no way of placing an exact amount as to how much a divorce should cost, it is accepted that the following serves as a good guideline:
- High Court Divorce proceeding generally are much more expensive than Regional Magistrates’ Court Divorce proceedings;
- If parties are acrimonious and unreasonable this usually means that costs may escalate;
- If parties are civil and reasonable, costs can be limited as far as possible; and
- If there is a possibility of a Settlement Agreement, the earlier it is concluded results in avoiding unnecessary litigation and costs.
From the above explanation it is clear that while divorce may be an emotional process which may take years, the legal process of divorce need not take so long to complete. Ultimately the time period in which divorce proceedings will be conducted and finalized is dependent on the state of disintegration of the relationship between the divorcing parties and the choice of legal representative, if any.