| 1. |
Jurisdiction |
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A Divorce
action can only be instituted in a High Court or the
Southern Divorce Court and the Plaintiff (the party
instituting the action) must prove that the Court has
jurisdiction by virtue of domicile or residence. This is
done by making the necessary averment in the Summons.
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| 2. |
The
Marriage |
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Plaintiff
must allege and prove a valid and existing marriage. The
date, place and matrimonial property dispensation must be
set out in the Summons. It is essential to provide your
attorney with your marriage certificate and if you have
misplaced your marriage certificate, request one from the
Department of Home Affairs.
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| 3. |
Grounds
for Divorce |
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There are two
grounds for a Court to grant a Divorce Order namely: |
|
| 3.1 |
The
irretrievable breakdown of a marriage:- |
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The
irretrievable breakdown of a marriage can be the
result of a multitude of factors, however a Court
may in its discretion accept as evidence that the
marriage has irretrievably broken down on inter alia
the following grounds:
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|
-
That
you and your spouse have not lived together as
husband and wife for a continuous period of at
least one year immediately prior to the date on
which you instituted the divorce proceedings
(when the Summons was issued).
- That the
Defendant has committed adultery that the
Plaintiff finds it irreconcilable with a
continued marriage relationship.
-
That
the Defendant has in terms of a sentence of the
Court been declared a habitual criminal and is
undergoing imprisonment as a result of such
sentence.
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| 3.2 |
Mental
illness or continuous unconsciousness. |
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| 4. |
Children |
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The
Particulars of Claim to the Summons must set out details of
children born out of the marriage and whether they are still
minors and details as to their welfare.
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| 5. |
Settlements |
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The ideal
situation is to reach settlement between parties at an early
stage. This will not only give you greater piece of mind but
will ensure that costs do not escalate. Settlement Agreement
can be drafted and signed prior to the Summons being issued.
A Deed of Settlement can then be attached to the Summons and
be referred to in the prayers (the Order which you require
the Court to make). Here are a few examples of aspects dealt
with in a Settlement Agreement:
|
|
| 5.1 |
Custody
of minor children |
| 5.2 |
Access
to the minor children |
| 5.3 |
Maintenance
for the minor children |
| 5.4 |
Maintenance
for Plaintiff/Defendant |
| 5.5 |
Movable
Assets |
| 5.6 |
Immovable
property |
| 5.7 |
Costs
of suit |
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| 6. |
Matrimonial
Property & Proprietary Claims Where No Settlement
Agreement Exists |
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| 6.1 |
Marriages
in Community of Property: |
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Division
of the Joint Estate is a natural consequence of a
divorce if a marriage is in community of property.
However, forfeiture of benefits of the marriage in
community of property can be claimed. The Court
would have regard to various factors i.e. the
duration of the marriage, circumstances leading to
the breakdown, misconduct of one of the parties.
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| 6.2 |
Marriages
out of community of property specifically excluding
the Accrual System and entered into after 1 November
1994: |
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On
dissolution of the marriage , in essence, each
spouse retains his/her own separate Estate. There
are, however, various other potential claims which
may be instituted based on i.e. monies loaned and
advanced; universal partnerships, etc, which will
not be discussed at length herein.
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| 6.3 |
Marriages
out of community of property without the accrual
entered before 1 November 1984: |
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A
Redistribution Order in terms of Section 7(3) of the
Divorce Act can potentially be claimed by a
successful Claimant. In
order to be successful, the Claimant must satisfy
the Court that he or she contributed directly or
indirectly to the increase of the other spouse’s
estate and further satisfy the requirements laid
down in the Act.
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| 6.4 |
Marriages
out of community of property subject to the Accrual
System: |
|
6.4.1 |
the nett
estates of each spouse is determined; |
|
6.4.2 |
any
assets specifically excluded from the operation of
the Accrual in the Antenuptial Contract are excluded
from the calculation; |
|
6.4.3 |
any
commencement value, increased in accordance with the
rise in the Consumer Price Index from date of
marriage to date of divorce, is deducted from the
accrual to each party’s estate;
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|
6.4.4 |
the nett
results (estates) of each party are considered and
the lesser nett accrual deducted from the
greater; |
|
6.4.5 |
the
nett difference between the parties is then divided
in two or in such other ratio as the parties may
have agreed in their Antenuptial Contract and the
party showing the greater accrual shall pay the
other such amount in settlement of the patrimonial
consequences of the marriage.
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|
| 7. |
Maintenance
Where No Settlement Agreement Exists |
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| 7.1 |
Spouse:
The Court will not award a spouse maintenance unless
there is a need for maintenance and an ability to
pay. No longer will a spouse be awarded maintenance
for an indefinite period. The party may however
approach the Maintenance Court at any time after
divorce for an increase in maintenance.
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| 7.2 |
Children:
Both parents have a duty to support having due
regard to their financial positions. Once again the
Maintenance Court may be approached for an increase
in maintenance.
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| 8. |
Custody
And Access Of Minor Children Where No Settlement Agreement
Exists |
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The Court
is upper guardian of all minor children and accordingly will
not grant a Divorce Order unless satisfied that the Order
sought is in the best interests of the minor children. The
Family Advocate is required prior to hearing, to state
whether the Order sought is in the best interests of the
minor children. Even where a Settlement Agreement exists,
this must be endorsed by the Family Advocate.
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| 9. |
Rule
43 Applications |
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This is an
interim application which is brought mainly in cases of
opposed divorces in order to obtain interim relief pending
finalisation of divorce. The relief which is requested
includes the following:
-
Maintenance
for the wife and/or children;
-
Interim
custody and control or access of the children;
-
Interim
contribution towards costs.
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