Divorce

Articles - Law Articles & Info

Attorney firms have extensive experience in all aspects of family law and provide the best legal support and assistance. Divorce has become a modern reality and statistics have shown that at least one in two marriages end this way.   Even when contested most divorces are eventually granted.

In South Africa, the divorce process will depend on whether the marriage is a civil marriage or a customary marriage.  Civil marriages are dissolved according to the rules and procedures set out in the Divorce Act.  Marriages in terms of African Customary Law are dissolved according to the civil law but some of the consequences are determined by custom or tradition.  Muslim and Hindi marriages are dissolved in terms of the rites and rituals of the religion.

Divorce is the final termination of a marital union, cancelling the legal duties and responsibilities of marriage by dissolving the bonds of matrimony between two persons.

Divorce does not declare a marriage null and void as in an annulment, but it does cancel the married status of the parties.  The terms of the divorce are confirmed/determined by the court, taking into account prenuptial agreements or postnuptial agreements, or simply ratify the terms that the spouses may have agreed to privately.

In the absence of an agreement, a contested divorce is stressful and leads to expensive litigation.  Less expensive approaches to divorce settlements are mediation or collaborative divorce, wherein the parties negotiate a mutually acceptable resolution to the conflict.

In South Africa, the dissolution of a marriage does not require an allegation or proof of fault of either party.  One needs to show the court that there has been an “irretrievable breakdown” of the marriage or that one of the spouses is mentally ill or continuously unconscious.

Irretrievable breakdown means that the couple can no longer live together and there is no reasonable chance of them resolving their differences.  Proof of this can include evidence showing that:
- The couple have not lived together for a while.
- One partner cheated on the other.
- One partner left the other
- One partner abused the other.
- The couple no longer love each other.

Divorce will also be granted if a partner has been institutionalised for mental illness for at least two years and doctors do not think that they will ever recover.
And lastly if your partner has been unconscious for at least six months and doctors do not believe that there is a chance of recovery.

Before the court will issue a divorce, the following issues need to be addressed:
-    Custody of the child
-    Access to the child
-    Maintenance
-    Division of Property

Custody of the child

The most important concern when deciding which parent should have custody, is to take into consideration the best interests of the child.“A child’s best interest are of paramount importance in every matter concerning the child.”

The Family Advocate at the court can help investigate which parent is in the best position to look after the child and will represent the child in the court if necessary.

In order to make its decision, the Court takes into account various factors, including:
-    the age, state of health, and social and financial position of both parents;
-    the parents temperament and behaviour towards the child;
-    the age, gender, health, character, education and religious needs of the child.
-    the child’s personal preferences are also given weight.

If the divorce is taking a long time an interim custody order can be issued, setting out who will look after the child until such time as the divorce is finalised.

In African, Hindu and Muslim customary marriages, the wife usually takes custody of the child.  According to African customary law, the father usually remains the child’s natural guardian.  The child of Hindu and Muslim marriages are regarded as illegitimate, so the mother is also the natural guardian.

Access to the child

Reasonable access is a right of the child and not of the parents.

“Once upon a time” child had two parents who had permanent access to them.  These days most children grow up without one or the other of their parents.  After a break up, there is a war of mud-slinging and blame but it is important for children to have the affectionate continuity of contact with both parents.  Personal differences need to be set aside and the child’s needs considered first and foremost.

The  parent who does not get custody will usually still want to see their child.  There therefore needs to be an agreement regarding when, where and how this parent will have access to the child.

If it is not in the best interests of the child for the “non-custodial” parent to have access rights, then the court can restrict access.  Once again the Family Advocate at the court will represent the child in the court if necessary.  Other than in exceptional circumstances, such as abuse of the child, the obvious way to see to the best interest of the child is to permit the child as much contact with the “non-custodial” parent as possible.  

In most cases the mother usually becomes the “custodial “parent, but this varies from case to case.   This does not however, mean that the “non-custodial” parents are deprived of parental rights.  “Non-custodial” parents have very definite legal rights and responsibilities, and amongst them is ‘reasonable access’.

Reasonable access depends largely on the age of the child and their relationship with their mother and father, but where school going children are concerned,  it is usually every alternate weekend and every alternate school holiday.

It is a criminal offence to deny a parent reasonable access, but because of the animosity involved, it is not unheard of for a parent to deny access as a sort of punishment against the ‘non-custodial parent.  The ‘non-custodial’ parent does have recourse, although it is unfortunately not a simple process.

A very important point for the ‘non-custodial’ parent to remember is that the payment of maintenance is in no way related to access, a parent does not buy access to his or her child by paying maintenance.  Maintenance is a legal responsibility of both parents and is not dependent on whether there is reasonable access to the child or not.  Regardless of how often a parent has access to the child, he or she is legally obliged to contribute financially to their support.

Maintenance

The Divorce Act 70 of 1979, the Maintenance Act 99 of 1998 and the Children’s Act 38 of 2005, all of which have been amended, regulate the payment of maintenance.  
No matter what the circumstances, the ‘non-custodial” parent still has a duty to support the child.  Children have a right to proper parental care, an obligation that the Constitution imposes first and foremost on their parents.

On the breakdown of a marriage or similar relationship it is almost always mothers who become the custodial parent and have to care for the child.  Apart from the responsibilities, this places an additional financial burden on them, whilst the ‘non-custodial’ parent has less responsibilities and generally becomes economically enriched.  Maintenance payments are therefore essential to relieve the financial burden on the ‘custodial’ parent.

Child maintenance lawyers offer advice on the best possible solution for you with regards to how much maintenance money should be paid after a divorce or separation, whether you have custody of the children or not.

The amount of money to be paid for Child maintenance is ultimately decided on by the court, who will take into consideration the monthly earnings and income of both parents.  

Coming to an agreement on the amount of maintenance a parent should pay can become a frustrating, long and difficult task.  It may therefore be in the best interest of both parents to seek professional advice, in order to come to a quick and fair decision regarding the amount of maintenance to be paid.

Division of Property

One would think that the equitable distribution of the property of a couple on the verge of divorce would be simple, but the plain truth is that it is much more complex than most people think.  One needs to take into consideration that where more assets, whether physical or financial, are at stake, the distribution of those assets can become lengthy and costly.  Disputes over the division of property can often be avoided by the parties agreeing to consult a mediator. Both parties should participate in filing taxes as well as be aware of what debts exist during the marriage.  

During a marriage both parties should take active part in the finances, which should result in each individual being aware of what assets are available.  
Make use of the professional assistance of an Attorney who has experience in assessing the situation and will not become emotionally involved.  An Attorney will do their utmost to insure that each matter is resolved, keeping your interest as well the costs involved in mind.

 

If you need more information on this subject matter, please click on one of the areas below:

Benoni
. Boksburg
. Brakpan
. Rustenburg

 


divorce, divorce attorney, divorce lawyer, divorce case, custody, child custody, maintenance

 
Search website for:
Who's Online
We have 44 guests online
Statistics
Members : 4670
Content : 887
Web Links : 5
Content View Hits : 3292954
Random Adverts
No images