Unfortunately a large percentage of all marriages in South Africa now end in divorce. The first consideration once you have decided to get divorced is whether you have valid grounds for a divorce.
The two grounds for divorce are:
- Irretrievable breakdown of the marriage (this means that the marriage relationship must no longer be normal and that the is no prospect of the restoration of a normal marriage relationship between the spouses), or
- Mental illness or continuous unconsciousness of a spouse.
A summons for divorce and other court process needs to be issued which will be taken care of by an experienced lawyer. It is advisable that the parties reach an agreement in regard to the issues below prior to the issue of the summons as this will expedite the proceedings and is also more cost effective.
The issues that needs to be addressed between the parties are the following:
Custody of the children
Two forms of custody can be considered:
- Joint Custody where parents share joint legal and joint physical custody. They contribute equally in making decisions regarding the children’s upbringing and welfare. This type of custody is impractical and causes household problems such as the provision of two households and is thus not generally granted.
- Sole custody where the custodian parent will have exclusive legal and physical custody rights in regard to the child subject to the other parent’s right of access.
Access to children
A non-custodian parent is entitled to reasonable access even in the absence of a court order stating otherwise. Obstructing a party in enforcing such a right is an offence and may cause the offending party to be found guilty of contempt of court. However, the best interests of the child will be paramount in determining the conditions of access.
Maintenance (for yourself, your spouse or for the children)
The Court will also make an order in regard to maintenance for children and may also grant an order for maintenance in favour of one of the parties to such a divorce.
Division of the property
The manner in which the property will be divided is dependent on the property regime you were married into.
- If married in community of property, the joint estate will be divided equally between the parties and debts will also be shared.
- If married out of community of property with accrual, the party whose estate showed the smallest accrual will share in half of the difference of the net accrual of the party whose estate had accrued the most during the marriage.
- If married out of community of property without accrual, no division will take place. However, in a recent judgment of the Constitutional, there are circumstances in which a division will be granted.
A pension interest can be split at divorce only if you were divorced on or after 13 September 2007.
The following conditions must be met before pension assets may be split:
- The divorce order must specifically state that the spouse who is not a member of the fund is entitled to a pension interest, as defined in the Divorce Act.
- The divorce order must specify the non-member spouse’s share of the pension interest as a percentage or rand amount.
- The fund that has to deduct the share of the pension interest must be named or identifiable.
- The fund must be expressly ordered to endorse its records and pay the share of the pension interest.
It is advisable to instruct an experienced lawyer for advice and assistance which will protect your financial and custodian interests. In addition, it will also relieve some of the emotional burden associated with divorce proceedings.
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