Family Law Banner
PRACTICE MANAGERNatasha Truyens

When a client is going through a divorce, our divorce lawyers are mindful and sensitive to the fact that such a client should not be burdened with legal uncertainty and excessive legal fees. We understand that any divorce is a stressful and emotional event, and we aim to assist our clients as swiftly and efficiently as possible.

Our expert team of family law and divorce lawyers will provide you with legal advice and assistance throughout the proceedings, whether during a contested or uncontested divorce. We follow a collaborative approach which ensures that our clients not only benefit from the knowledge of attorneys specialising in divorce proceedings but also from that of attorneys in our other departments including estate planning and tax. The team (consisting of Directors, Associate Attorneys, Candidate Attorneys and Paralegals) have therefore designed an efficient approach to divorces wherein we can finalise your divorce as smartly and swiftly as possible.

  • Once you have made contact with our offices, we will request that you provided us with certain information and documentation to enable us to assist you. We will then schedule a consultation with you as soon as practicably possible to advise you of your rights and the options available to you, even if it does not necessarily entail a divorce.
  • During the consultation, we will ensure that we obtain any further information and documentation from you that we did not receive prior to the consultation. We will peruse and consider the same with you whilst explaining in detail what the process of a contested and uncontested divorce entails, the time frames applicable and different payment plans to cater for your unique position.
  • After the consultation, we will commence with the drafting of all the required Court documentation to ensure that all the prescribed timelines are met. During this whole process, we will ensure that you are kept up to date with all developments of your contested or uncontested divorce. We are, however, dependent on your instructions but will put you in the best possible position to provide us therewith. 
  • We can assist our clients with any divorce process, whether contested or uncontested and although we, in general, strive to assist our clients in a non-confrontational manner, we also successfully litigate when an amicable approach is not suitable. We understand the requirement of having to be always one step ahead and can assist you whether you are a CEO of a very successful company or an ordinary (wo)man on the street.

A marriage can be dissolved either by the death of one of the parties or by divorce. Grounds which a Court will consider when dissolving a marriage by way of a divorce, are the following:

 

Irretrievable Breakdown

The Divorce Act 70 of 1979 sets out circumstances when a Court, if it is so proven, may accept an irretrievable breakdown of the marriage as a ground for divorce. These are when, for example:

  • The parties have not lived together as wife and husband for a continuous period of at least one year immediately prior to the date of issuing summons for divorce;
  • One of the parties has committed adultery and the other party finds it irreconcilable to continue with the marriage relationship;
  • One of the parties has been declared as a habitual criminal and is (or will be) undergoing imprisonment;
  • Any other facts or circumstances which may be indicative of the irretrievable breakdown of a marriage.

The “other facts or circumstances” can include any aspect which would make the restoration of a marriage relationship between the parties impossible. Each marriage is different and hence these facts or circumstances will vary from marriage to marriage. It would, however, normally include physical, verbal and emotional abuse from one of the parties, lack of communication, divergent views on religion, lack of common interest, lack of day-to-day support and constant quarrels between the parties.

In accordance with Section 4 of the Divorce Act, a Court may grant a divorce on the ground of an irretrievable breakdown of the marriage if the Court is satisfied that the marriage relationship has disintegrated to such an extent that there is no reasonable prospect of the restoration of a normal marriage relationship between the parties. 

A Court, however, still has a discretion whether or not to grant a divorce based on an irretrievable breakdown. In accordance with the provisions of Section 4(3) of the Divorce Act, the Court may postpone the divorce proceedings and order the parties to seek counselling in an attempt to restore the marriage relationship if the Court is not convinced that the marriage has broken down irretrievably or that the parties did not try to save the marriage convincingly.

The fact that the Court may grant a divorce if it is satisfied that there has been an irretrievable breakdown in the marriage relationship between the parties suggests that it is not a requirement for any of the parties to be “at fault” in order for a Court to grant an order of a divorce.

Although a Court may grant a decree of divorce if the requirements of Section 4 of the Divorce Act are met, it SHALL NOT grant a decree of divorce where there are minor or dependent children involved and the Court is not satisfied that their welfare are the best that can be effected in the circumstances.

 

Mental Illness

For a Court to grant a decree of divorce on the ground of mental illness, the Court must, in accordance with Section 5 of the Divorce Act, be satisfied that a party:

  • has been admitted as a patient to an institution in terms of a reception order; or
  • is being detained as a state patient at an institution or other place specified by the Minister of Correctional Services; or
  • is being detained as a mentally ill convicted prisoner at an institution.

Further to the above, a Court must be satisfied that such a party has for a period of at least two years immediately prior to the commencement of the divorce proceedings not been discharged from any of the above institutions and that there is no reasonable prospect that the party will be cured of the mental illness.

 

Continuous unconsciousness

In accordance with Section 5 of the Divorce Act, a Court may grant a divorce if it is satisfied that one of the parties suffer from continuous unconsciousness where:

  • the unconsciousness has lasted for a continuous period of at least 6 months immediately prior to the institution of the divorce action; and
  • from evidence of at least 2 medical practitioners (one of whom must be a neurologist or a neurosurgeon appointed by the Court) there is no reasonable prospect that the party will regain consciousness.

You may approach a Court that will have jurisdiction to adjudicate a divorce if one or both parties are:

  • domiciled in the area of jurisdiction of the Court on the date on which the action is instituted; or
  • ordinarily resident in the area of jurisdiction of the Court on the said date and has or have been ordinarily resident in South Africa for a period of not less than 1 year immediately prior to that date.

Unless the parties enter into a settlement agreement regulating the division of their assets, the answer to this question will mainly depend on the marriage regime applicable to your marriage at the time of the divorce. Regardless of the marriage regime, the parties may enter into a settlement agreement recording inter alia what will happen to their property after the divorce. If the parties cannot reach a settlement agreement as to the manner in which their property should be divided, the Court will adjudicate this as a dispute between the parties during trial.

 

Married out of community of property with the inclusion of the accrual system

During the marriage, each party has his/her own estate and may deal with their assets and liabilities as he/she wishes. The accrual only kicks in when the marriage is dissolved – either by way of the death of one of the parties or on the date of divorce. Each spouse is also protected from creditors of the other spouse. The accrual of the estate of a spouse is the amount by which the net value of his or her estate at the dissolution of the marriage exceeds the net value of his or her estate at the commencement of the marriage. The spouse with the least growth will have an accrual claim against the estate of the spouse which estate showed a larger growth.

Accrual can ensure that a spouse who indirectly contributed to the growth of the estate of the other spouse is not left high and dry should the marriage be dissolved. A typical example would be where a husband leaves his full-time employment to care for the parties’ children and manage the family affairs at home. As a result of the husband leaving his full-time employment his personal estate will not continue to grow. However, due to the husband managing the family affairs at home and caring for the children, his wife has more free time to focus on her career and work longer hours. The husband, therefore, puts his wife in the position to further her career and increase the value of her estate. If the husband did not leave his full-time employment to manage the family affairs at home and care for the children, the wife would not have been in a position to spend as much time furthering her career. After some time, and as a result of the wife spending time furthering her career, the wife’s estate will grow and increase in value while the husband’s estate will remain stagnant. The husband, therefore, contributes indirectly to the growth and accrual of his wife’s estate. 

In the example above, if the wife’s estate has accrued more than the estate of the husband, the husband has a claim against the wife, when the marriage comes to an end, for an amount equal to half of the difference between the accrual of the respective estates.

In accordance with the provisions of the Matrimonial Properties Act, 88 of 1984 every marriage entered into after 1 November 1984 out of community of property will automatically be subject to the accrual system, unless the application of the accrual system has expressly been excluded in the antenuptial contract.

In order to be married out of community of property, the parties have to sign an antenuptial contract prior to the commencement of the marriage. An antenuptial contract must be signed in the presence of a notary and thereafter be registered in the deeds office.

Upon the dissolution of the marriage, the accrual system will become applicable. The value of the accrual claim that one party may have against the estate of the other is determined by using a calculation, taking into consideration the commencement values of the spouses’ respective estates recorded in the antenuptial contract, the end values of the spouses’ respective estates at the dissolution of the marriage and all assets excluded from the accrual as recorded in the antenuptial contract.

Each party’s property acquired during the course of the marriage will remain his or her own property after the divorce. The accrual claim will be claimed in value and not for a share in any specific property. 

When calculating the accrual of the estate of one of the spouses, not all of that spouse’s property will necessarily be considered when determining the end value of that spouse’s estate. Section 4 of the Matrimonial Property Act of 1984, notes the following to be excluded when the accrual is calculated:

  • Any asset specifically excluded in the antenuptial contract ;
  • Any inheritance, legacy, trust or donation received by a spouse during the marriage from any third party (Section 5 of the Matrimonial Property Act);
  • Any donation between spouses;
  • Any amount that has accrued to a spouse by way of damages, other than damages for patrimonial loss, by reason of a delict committed against him or her (e.g. slander or a personal injury)

 

Married out of community of property with the exclusion of the accrual system

In this marriage regime, each party retains his or her own estate accumulated before marriage and throughout the course of their marriage. All assets gained or lost by any party, will be considered as assets gained or assets lost by that specific estate.

This system provides the parties absolute independence and protects each spouse’s estate against claims by the other spouse’s creditors.

As stated herein above, the provisions of the Matrimonial Properties Act 88 of 1984 determines that every marriage entered into after 1 November 1984 out of community of property will automatically be subject to the accrual system, unless the application of the accrual system has expressly been excluded in the antenuptial contract.

If parties, therefore, wish to be married out of community of property and that the accrual system must not be applicable to their marriage, they must specifically state in the antenuptial contract that the accrual system will not be applicable to their marriage. An antenuptial contract must be signed in the presence of a notary and thereafter be registered in the deeds office.

 

Married in community of property

Where parties are married in community of property they share in one joint estate. Upon the dissolution of marriage, the assets (and liabilities) of the joint estate will be divided equally between the parties (unless they enter into a settlement agreement during an uncontested divorce with alternative terms). 

Parties may enter into a settlement agreement wherein they agree amongst themselves how the joint estate should be divided. If they cannot agree, the Court will order that the joint estate be terminated and that a liquidator be appointed to realise all the assets and liabilities of the joint estate and to divide the proceeds (if any) equally between the parties or as specified by the Court.

The question relating to what a divorce costs, depends solely on whether your divorce will be a contested or uncontested divorce.

We provide our clients with various packages relating to uncontested divorces. An uncontested divorce, depending on the client’s specific needs, instructions and set of facts, may cost between R10,000.00 and R35,000.00.  We explain the cost implications in more detail during the initial consultation.

The costs of a contested divorce are much higher and will depend on an array of factors, but mostly on the client’s instructions. Aspects such as minor children and division of accrual, all directly impact the costs involved in a contested divorce. Our offices aim to provide our clients with cost estimates on a regular basis to ensure that they are always aware of what the next steps in the contested divorce will be and what the cost implication will be.

Yes, you can have interim custody (care) of your child during contested divorce proceedings. This is done by way of a Rule 43 application (High Court) or a Rule 58 application (Magistrates’ Court) generally brought with the assistance of a divorce lawyer.

Interim custody (care) refers to custody (care) during the course of the divorce proceedings and until a final divorce order is granted. Since the inception of the Children’s Act, the concept of “custody” has been replaced with the concept of “care”. The term “custody” is however still widely used in our spoken language.

The Court will generally be unwilling to upset the status quo concerning the custody (care) of minor children. The principle of preserving the status quo is, however, subject to considerations that the paramount interest of the minor children must always triumph and that the status quo must not constitute an unreasonable state of affairs.

The Court may refer an application for interim custody to the Family Advocate for investigation.

Yes, you can have interim access (contact) to your child during contested divorce proceedings. This is done by way of a Rule 43 application (High Court) or a Rule 58 application (Magistrates’ Court) generally brought with the assistance of a divorce lawyer.

Interim access refers to access (contact) during the course of the divorce proceedings and until a final decree of divorce is granted.

In general, it is regarded to be in children’s best interest to have as much contact as possible with both their parents. There are however various psychological and developmental factors which must be taken into account when determining how much contact is in the best interest of any particular child. The amount of contact granted to a parent is also not always indicative of that parent’s ability or inability to care for a child. It may simply be that the awarding of more contact is not practical in a set of circumstances or that a specific child requires a less complex routine with fewer interruptions. 

The Court will generally be unwilling to upset the status quo concerning the access (contact) of minor children. The principle of preserving the status quo is, however, subject to considerations that the paramount interest of the minor children must always triumph and that the status quo must not constitute an unreasonable state of affairs.

Since the inception of the Children’s Act the previous concept of “access” has been replaced with the concept of “contact”. Contact can be in the form of visitation, telephonic contact or contact through other forms of communication, including SMS, WhatsApp and Skype.

The Court may refer an application for interim contact to the Family Advocate for investigation.

Yes, you can claim interim (temporary) maintenance from your spouse during contested divorce proceedings. This is done by way of a Rule 43 application (High Court) or a Rule 58 application (Magistrates’ Court), generally brought with the assistance of a divorce lawyer.

In this type of application, you may request the Court to grant an interim (temporary) order that your spouse must contribute towards your and/or your child’s maintenance. This maintenance is intended to be an interim remedy and cannot be determined with the same degree of precision as would be possible in a trial where detailed evidence is produced to the Court.

You are entitled to reasonable interim maintenance dependent upon the marital standard of living of the parties, your actual and reasonable requirements and the financial capacity of your spouse to meet such requirements. Although mostly determined by having regard to income, the Court may in some circumstances find that inroads on capital may be justified.

The Family Advocate is an impartial state institution appointed by the Minister of Justice in terms of the Mediation in certain Divorce Matters Act 24 of 1987. The Family Advocate can after the institution of a divorce action or an application for the variation, rescission or suspension of an order with regard to the custody (care), guardianship of, or access (contact) to a child, institute an enquiry to enable it to provide to the Court a report and recommendations concerning the best interests of the child. Such an inquiry can be instituted upon request by one of the parties to the proceedings or on the instance of the Court. 

The Family Advocate may, if it deems it in the interest of any minor or dependent child of a marriage concerned, and shall, if so requested by a Court, appear at the trial of any divorce action and may adduce any available evidence relevant to the action and cross-examine witnesses giving evidence thereat.

The services of the Family Advocate are rendered to the public free of charge. 

If you require any additional information regarding the services that the offices of the Family Advocate provide, you may find information on their website directly (http://www.justice.gov.za/FMAdv/f_main.htm). 

Parties to divorce proceedings may enter into a settlement agreement at any time before or during the divorce proceedings (whether a summons has been issued or not), agreeing on all aspects relating to the dissolution of their marriage, which will include:

  • Division of assets;
  • Custody (care) of minor children;
  • Maintenance of minor children;
  • Accrual.

There will be no formal trial (with examinations of parties by opposing legal representatives) and only one party is required to appear in Court on the day of the divorce.

A divorce can also be finalised on an uncontested basis if your spouse (as the defendant) failed to enter an appearance to defend within 10 (ten) days after the Sheriff has personally served him or her with the divorce summons. In such an instance you (as the plaintiff) may proceed to enrol the divorce as an uncontested divorce on the Court roll based on the fact that your spouse did not enter an appearance to defend the divorce.

It is important that, when you receive a divorce summons from your spouse and you do not agree with your spouse’s claims, you defend the summons timeously and within the 10 (ten) day period mentioned hereinabove.

One of the parties to the uncontested divorce action must appear in Court on the day on which the uncontested divorce is enrolled for hearing. 

The Court must be satisfied by one of the parties to an uncontested divorce that the settlement agreement has indeed been signed by both parties and that they would like the divorce to be finalised as an uncontested divorce on the day. In general, it should be the party cited as the plaintiff who must appear in Court.

Your divorce lawyer or her or his candidate attorney will accompany you to Court for the finalisation of the uncontested divorce proceedings. Prior to the proceedings, you will also need to meet and consult with your Advocate, whom your divorce lawyer instructed to facilitate the uncontested divorce on the day.

An uncontested divorce can take between 2 and 6 months to finalise.

The sooner the parties sign a settlement agreement, the sooner the divorce summons can be issued to commence the uncontested divorce proceedings. Subsequent to the issue of the summons, it will be delivered to the Sheriff for personal service on the defendant. If your spouse has not entered an appearance to defend after 10 (ten) days from date of service of the divorce summons, your divorce lawyer may apply to the Court for a date for the hearing of the uncontested divorce.

The Court date will be communicated to you once it has been received from the Registrar of the Court. This Court date can be anywhere between a few weeks and a few months, depending on how congested the Court roll is for uncontested divorces at the time.

During a contested divorce the parties will normally each have their own divorce lawyer. Divorce becomes a contested divorce if the parties cannot agree on the terms of a settlement agreement and one of the parties issues summonses for a divorce wherein that party (acting as the plaintiff) sets out the terms on which he or she wants the divorce to be concluded. Naturally, the other party (acting as the defendant) would not agree with the terms claimed by the plaintiff and does not only defend the plaintiff’s claim but will usually also institute a counter-claim with the terms on which the defendant wants the divorce to be concluded.

During a contested divorce, the parties go through all the stages and steps required to prepare for a trial. These stages include the exchange of pleadings, an application for a trial date, one or more pretrial conferences, the discovery of documents, and trial and judgment. During the trial, the parties will themselves testify in Court and will also be allowed to call witnesses to provide evidence in support of their respective claims and defences.

Although a lot of divorces commence as contested divorces, the majority turn into uncontested divorces at some period prior to the commencement of the trial when the parties enter into a settlement agreement. 

A good divorce lawyer will ensure that the time limits prescribed by the Court rules are always adhered to which greatly contributes to a contested divorce being finalised as swiftly as possible.

A contested divorce can take between 2 to 5 years to finalise depending on the complexity of the disputes and conduct of the parties. To ensure that the divorce is finalised as swiftly as possible, however, it is important that a client keeps a divorce lawyer abreast of all aspects which may have an impact on the divorce.

Contested divorces are generally more costly than uncontested divorces. The total costs, although heavily variable, is mainly dependent on the conduct of the parties during the proceedings. Another factor which contributes to the high costs is the fact that the parties often require assistance from several expert witnesses to prove their claims. These expert witnesses may include:

  • Actuaries, to determine the amount and duration of maintenance contributions or child maintenance;
  • Forensic accountants, to examine both parties’ estates for purposes of division of joint estates or the determination of a possible accrual claim;
  • Child-care experts to assess with whom minor children should reside during and after the divorce.

Your spouse is not automatically entitled to spousal maintenance following a divorce. Section 7 of the Divorce Act 70 of 1979 states that:

The Court may, having regard to 

  • the existing or prospective means of each of the parties, 
  • their respective earning capacities, 
  • financial needs and obligations, 
  • the age of each of the parties, 
  • the duration of the marriage, 
  • the standard of living of the parties prior to the divorce, 
  • the conduct in so far as it may be relevant to the breakdown of the marriage, 
  • an order in terms of Section 7(3) and 
  • any other factor which in the opinion of the Court should be taken into account, 

make an order which the Court finds just in respect of the payment of maintenance by the one party to the other for any period until death or remarriage of the party in whose favour the order is given, whichever event may first occur.”

It is clear from the above that a spouse is certainly not entitled to spousal maintenance after the divorce. The Court, however, has a very wide discretion to award maintenance to a spouse after divorce and will take any such factor as it may deem relevant, in the circumstances, into consideration when considering an order for spousal maintenance.

The Family Law Team

Contact Us Now