More general questions on divorce
What types of divorces are there?
There are two main types of divorces: uncontested divorce (basically a divorce without a fight) and contested divorce (divorce where the attorneys and/or parties fight it out in court). These main types can take on various forms, which might include: online divorce, divorce where one of the parties are overseas, the DIY divorce and the divorce where you have been separated for so long that you don’t know the whereabouts of your spouse.
What are the grounds for divorce?
The Divorce Act of 70 of 1979 introduced 3 grounds for divorce:
- Irretrievable breakdown of the marriage (this is the norm that is being used every day)
- Continuous unconsciousness of a spouse (rarely used)
- Mental illness of a spouse (rarely used, unless your spouse is in a mental facility)
What is an “irretrievable breakdown”?
To get a divorce you need proof that your marriage is not working any longer. Irretrievable breakdown is referred to as a marriage relationship which is permanently broken down and believed to be beyond repair. A marriage may break down for multiple reasons, many of which will not involve wrong-doing by either party. Frequent reasons for divorce are emotional, verbal, sexual or physical abuse of yourself or of your children, alcohol or drug abuse, a lack of communication between the parties or the fact that you no longer love with your spouse.
And again, yes, it is enough to allege that you no longer love your spouse to create the basis or grounds for divorce. You must remember that you will be expected to give oral evidence in Court regarding the reasons for the breakdown which you have alleged to.
There are many ways a marriage can reach irretrievable breakdown:
The Divorce Act lists some of these circumstances in Section 4(2): when one spouse is a habitual criminal, if your spouse is in prison, mental illness, assault, cruelty or domestic violence, living apart for more than one year, malicious desertion or even alcoholism or drug addiction.
My spouse is cheating on me
Adultery in itself is not a ground for divorce, but if you can prove that living together has become intolerable as a result of it, it will satisfy the court.
What documents are required to file for divorce?
The following documents will usually be requested by your divorce attorney:
- Proof of Your Residential Address
- Copy of Your Ante nuptial Contract (if any)
- Your Marriage Certificate (an original and not a copy)
- Copy of Your ID Document and/or Passport
Is it possible to finalize a divorce without an attorney?
It is possible, however due to the nature and complicity of the divorce process it is highly recommended to have a legal representative oversee the process to ensure all steps are finalized. Moreover, when it comes to your entitlement to benefits such as pension funds and joint custody of kids and maintenance, it would be advisable to have someone with legal knowledge on your side to make sure that everything is divided fairly.
At which Court will my divorce be heard?
The Regional Court and High Court with jurisdiction within the nearest proximity of where either of the parties is domiciled (permanent residence), will have jurisdiction to hear the divorce.
Can I get a divorce without going to Court?
Not always; in the case of uncontested divorces, only one party will need to appear at the hearing. However, a contested divorce (where the matter goes to trial before a judge or magistrate) will always take place in court – this sometimes happen when the parties does not agree on certain provisions or conditions that the other spouse has – and then it is up to the judge or magistrate to decide. Practice has shown that in 99% of the contested cases it usually is about money, where the parties do not agree on who gets what and who is entitled to what.
Who will get the engagement ring after divorce?
The engagement ring is viewed as a gift and thus, the giver of such a gift has no claim on the engagement ring. Although uncommon, an agreement can be reached in which the giver of the ring may have it returned to them. However this must be agreed upon by both parties involved. This should be clearly stated in the divorce settlement agreement.
What is a “roundtable meeting”?
You will in all probability hear this phrase when your other half is legally represented. This is simply a meeting of the divorce parties and their legal representatives (Attorneys and sometimes Advocates) to discuss a settlement or possibility of a settlement which takes place in a neutral space such as a boardroom or office.
Who is who in these proceedings?
The Plaintiff is the person who starts the proceedings by means of issuing summons on their spouse. His/her name will be mentioned first on the Combined Summons, further formal court documents and notices. In divorce proceedings, the Defendant is the Plaintiff‟s spouse. Just to clarify: the stigma that the person who sues the other party is in a better position that the person being sued is totally not true.
What is a divorce settlement?
This is a document drafted by the attorneys (usually) that explains how the parties have reached an agreement. The main issues in a divorce settlement are usually division of property, maintenance, and custody of the children. It is always advisable to reach a settlement with your spouse as this will save you both a lot of time, money, and energy. Reaching a compromise regarding how to divide the property, maintenance, and custody is prudent as this will shorten the court process. Both parties must sign this settlement, and the court will then make it an order. This will mean that if either party does not abide by it, you could be found guilty of contempt of court, and could be jailed.
What needs to be discussed?
If you and your spouse are on speaking terms (which could also include e-mails or whatsapp messages) then the divorce proceedings could be fast-forwarded if the parties could discuss and agree on the following:
- Possibility of reconciliation (maybe with professional help)
- Division of assets (house and furniture and everything of value)
- Primary care of the minor children
- Contact with children (a parenting plan could be drawn up later)
- Maintenance for children and, if needs be, spousal maintenance.