• 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.

Should you require more information you are welcome to give us a call. Time van Rooyen & Associates

A divorce action is instituted by the issuing of a summons. You can divorce in either the Regional Court of the Magistrate Court having jurisdiction in your area or in the High Court. To start the divorce process you need to serve a Summons. A divorce summons is unique in that it must be served personally on the defendant by the sheriff of the court. 

A court has jurisdiction in a divorce action if one or both parties are:

• domiciled in the area of jurisdiction of the court on the date on which the action is instituted; or
• ordinarily resident in the area of jurisdiction of the court on the said date and has/have been ordinarily resident in South Africa for a period of not less than one year immediately prior to that date.
  

There are typically two types of divorces, the contested or opposed divorce and the uncontested or unopposed. The latter type of divorce is the best and most cost effective for all parties concerned. An uncontested divorce can be finalized in as little as 4 weeks. If a divorce is contested it may take between 2 - 3 years, but most contested divorces do settle long before they go on trial.

In South Africa, the marital regime of the parties determines how the assets will be divided upon dissolution of the marriage, the assets being those at the time of the divorce. In South Africa, we have a ‘no fault’ system of divorce, meaning that a divorce will be granted if one of the parties believes that there has been an ‘irretrievable breakdown of the marriage relationship’ and that there are no reasonable prospects of restoring it. Therefore, a marriage can be dissolved even if one of the parties does not wish to get divorced.

Civil marriages, civil unions and those religious marriages conducted by registered marriage officers can only be dissolved by order of the court. The spouse wishing to end the marriage must issue a summons against the other spouse, stating that the relationship has broken down, that there is no reasonable prospect of restoring the relationship and which matrimonial property regime governs the marriage. The summons must make provision for the division of the estate, either stating that the parties have entered into a prior agreement or asking the court to divide the joint estate or enforce the provisions of the ANC. Parties must also set out what the arrangements are with regards to any children born or adopted during the marriage to edit.

Getting divorced is never easy, please feel free to consult with us to see how we can help you through this difficult time.