In South Africa we have two forums where a party can obtain a decree of divorce – through the High Court or the Regional Court.
The Regional Courts have only recently been introduced into our legal system, and have been a welcomed addition as a result of alleviating pressure on our High Courts, which are heavily backlogged, resulting in months of waiting time in order to obtain a hearing date for the divorce trial.
The result in both forums is that divorces are able to be finalised much quicker, and should you choose to do so in the Regional Court, it can be much easier on the pocket.
Once you’ve made the tough decision to separate from your spouse, it is an added pressure not knowing what to do in order to legally finalise your separation.
The first route to take is to speak to an attorney who deals with family and divorce law. Depending on the nature of the divorce and the complexities involved (the division of your estates either by way of accrual or community of property, as well as the care and maintenance of the spouse and minor children), the attorney will either advise you to issue proceedings out of the High Court or the Regional Court in your area. Part of the reasoning behind choosing one over the other, is that some of the Regional Court Magistrate’s aren’t as experienced as the High Court judges, which may lead to more problems than it’s worth, as the magistrate may not be sufficiently equipped to deal with complex issues.
Be that as it may, in order to move forward with divorce proceedings, you as the Plaintiff (because you have to sue your spouse for a decree of divorce), will have to have a Summons issued and served on your spouse. This summons must be served on your spouse personally, and cannot be attached to a door or placed in a post box, as in the case of other civil matters. In the rare cases where your spouse has absconded and you do not know his whereabouts, the court may grant you an application to ‘serve’ the summons by way of Edictal Citation – that is to say that a notice will be placed in a newspaper circulating his last known address, stating that you are instituting divorce proceedings.
The summons will contain the following information:
- The names, occupation and address of both yourself and your spouse;
- Details of when (date), where (place) and how (whether in or out of community of property) you were married;
- Detail of any minor children born of the marriage;
- Reasons for the breakdown of the marriage, such as infidelity, abuse and loss of love and affection, among others;
- A statement of where the minor children currently reside and the shared responsibilities, rights and obligations in respect of the children in terms of the Children’s Act 38 of 2005;
- Details of maintenance required in respect of the minor children;
- Details of maintenance required in respect of yourself;
- A statement indicating how the estates are to be divided – that is to say either division of the joint estate should be stated (where you are married in community of property), or that you may be entitled to the division of the accrual (if you are married out of community of property with the inclusion of accrual).
It is important to note that both parties are legally required to maintain their minor children, which is a responsibly entrenched in our law.
However on the other hand, no person is outright entitled to maintenance from their spouse as a matter of fact. The courts have held that only where a wife (or in some cases a husband) necessarily requires maintenance, are they able to claim same.
As a result little or no maintenance will be awarded to a wife if one or more of the following factors are present:
- She is young or “reasonably young”;
- She is well qualified;
- She has no children or no young children;
- She has worked throughout her married life and/or is working at the time when she applies for maintenance;
- She is in good health;
- The marriage was of short duration.
Should you be in the position that you are able to claim maintenance from your spouse, in the event that there are not sufficient assets to either give or liquidate, in order to pay a lump sum (along the lines of the ‘clean break’ principle), the alternative is to seek rehabilitative maintenance. This is where your spouse would make a monthly payment of maintenance for a set period of time, which should enable you to ‘get back on your feet’ financially and enable you to become self-supporting.
The main aim in any divorce matter is for the parties to settle the matter as amicably as possible, especially where small children are involved. The best outcome is to mediate and reach agreement on the proprietary aspects of the marriage, as well as the maintenance obligations of both parties, and to enter into a settlement agreement.
In the event that a settlement agreement is reached, the agreement will be made an order of court, which will legalise and place fixed terms in place which the parties have to abide by. In the event that either one of the parties fails to adhere to the court order and settlement agreement, an application can be made to court giving notice of contempt of the court order.