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Divorce Law

Divorce Law

Divorce (or the dissolution of a marriage by a court) is results in the final termination of a marital union, cancelling the legal duties and responsibilities flowing from marriage and dissolving the bonds of matrimony between the parties. In South Africa, divorce requires the sanction of either the High Court or a specialist Divorce Court as it is an area of law that affects one's legal status.

The legal process for divorce may also involve issues of maintenance or spousal support, child custody, child support, distribution of property and division of debt.

Where the issues are not complex and the parties are cooperative, a settlement can often be negotiated between them, and the parties will be divorced based on this 'consent paper'. Where there are disputes of fact, on the other hand, the divorce must proceed through the court system.

Most recent Divorce Law Articles posted

Customary marriage issue before top court today

The customary marriage issue is to be argued in the Constitutional Court today. The matter has been brought by Thokozani Maphumulo, the second wife of her husband, Musawenkosi, for 25 years until his death. In his will he left his entire estate to his eldest born son from his first wife. In 2015, two years after he died, she was served with an eviction notice and she became another victim of an unregulated customary marriage system, notes a News24 report.

Divorce case throws up customary v civil marriage conundrum

One of SA’s highest profile divorces has taken a new twist, notes a report in the Sunday Times. The woman is claiming their antenuptial contract is invalid because they entered into a customary marriage, which started at Nkandla, before their civil marriage. Should the judge agree with her claim, she will get half of her husband’s substantial estate, which is believed to include a private jet, various high-end properties, interests in eight companies and several luxury vehicles.

South Africa’s three marital systems

In South Africa there are only 3 possible marital systems for couples who are getting married to chose from. They are: (i) A marriage in community of property; (ii) A marriage out of community of property; or (iii) A marriage out of community of property but with the accrual. The choice between the 3 marital systems is very important since it will govern how your assets and liabilities (debts) will be dealt with, not only between the two of you, but also between you and other people.

High Court forces sheriff to attach maintenance

A mother – owed R175 000 in unpaid interim maintenance from her estranged husband – was forced to go to the High Court to get an order compelling the sheriff to obey a court instruction to attach money in his bank account, says a report in The Mercury. The office of the sheriff had refused for months to act on an order issued by the Regional Magistrate’s Court on 1 June this year.

Divorce Maintenance: Can You Contract Out of It?

Generally, our laws hold us to the agreements we make with each other, but there are limits. A recent High Court judgment dealing with a bitterly-fought divorce dispute, illustrates. A Senior Advocate, having been through in his words a "very, very, very costly" divorce once, and having in mind no doubt the old proverb "once bitten, twice shy", decided not to be bitten again when he re-married.

Couple demand divorce papers be served in Sepedi

A divorce summons issued in Sepedi is not an everyday occurrence in the courts, but a couple are demanding their court documents be issued in their mother tongue, notes a Cape Times report. Their lawyer, Tshepo Sebola, of Maluleke Seriti Makhume Matlala Inc, said since Sepedi is one of the 11 official languages it was his clients’ right to have summons issued in their language.

Women's Legal Centre wants Muslim marriages recognised

Women who leave their marriages destitute because of the government’s failure to recognise their Muslim nuptials will today ask the Western Cape High Court to rescue them, says a report in The Herald. The Women’s Legal Centre said it was litigating in the public interest because the lack of recognition of such marriages affected women and children in particular.

Lobola issue heads to SCA

After 10 years of litigation, the lobola conundrum is set to head to the SCA. Joburg City Theatres CEO Xoliswa Nduneni-Ngema’s lengthy battle for half of wealthy businessman Sifiso Dabengwa’s estate was dealt yet another blow last week when the Gauteng High Court (Johannesburg) dismissed her application for leave to appeal, says a Sunday Times report. They would take the matter to the SCA, said Ike Motloung, Nduneni-Ngema’s lawyer.

Woman who was never married allowed to attached assets

A woman who says her ‘husband’ gave her the impression that they were legally married for several years now has the go-ahead to attach some of his assets, the Gauteng High Court (Pretoria) has ordered. According to a Beeld report, Michelle van Tonder, from Secunda, obtained a final order against former lover Patrick John Fann. The court authorised the sheriff to attach money in Fann’s Absa account to the value of R345 000 and pay it over to Van Tonder.

'Trophy wife' advocate faces Bar Council inquiry

A senior advocate snared a ‘trophy wife’ 25 years his junior, got her pregnant then forced her to sign a contract the day before their wedding barring her from claiming maintenance if the marriage broke down. Then, says a Sunday Times report quoting Acting Judge Leslie Weinkove, he ‘systematically divested his estate of assets’ with the ‘calculated objective of placing them beyond his wife’s reach’.

Wife denied assets on duration of marriage – ruling

A woman married in community of property was not entitled to half her wealthy husband’s assets as the marriage had lasted only 20 months, the Gauteng High Court (Pretoria) has ruled.

Woman with two husbands in maintenance dispute

An unusual case of polyandry – a woman with more than one husband – is before the KZN High Court (Durban) in an application in which the woman is trying to get maintenance from her most recent ‘husband’ who is arguing that – unbeknown to him – she was still married to someone else. The Mercury reports the matter came before the court as a ‘Rule 43’ application which, in terms of the Marriages Act, entitles separated spouses to claim maintenance before the finalisation of their divorces. The case involves an unregistered Islamic marriage which is not covered by the Act. However, last year a judge awarded what was believed to be the first interim maintenance order in an Islamic divorce case which was seen as precedent-setting. 

Next stop SCA after Winnie Madikizela-Mandela appeal dismissed

The Mthatha High Court has dismissed the appeal of Winnie Madikizela-Mandela who had laid claim to the Qunu home of former President Nelson Mandela. The court also ordered Madikizela-Mandela to pay the cost of the application, according to a report on The Citizen site. She filed an appeal in April after losing an earlier bid to lay claim to Madiba’s Qunu home in the Eastern Cape. Madikizela-Mandela’s lawyer Mvuzo Notyesi reportedly said they would now petition the SCA.

Domestic Violence: Report it!

A recent Supreme Court of Appeal (SCA) decision underlines the very strong duty on SAPS members to assist victims of domestic violence. The Domestic Violence Act (“domestic violence” isn’t limited to cases of physical harm – it includes a very wide range of abusive conduct) provides legal protection to victims, especially to those most vulnerable such as women, children, disabled people and the elderly. If you are a victim (or helping a victim) the Police are obliged to assist and cannot shirk their responsibilities.

Divorce: Custody of the Children

Before the court will issue a divorce, it has to be decided who will look after the children. The parents can make an agreement or the court can decide. If you are in the middle of a divorce from your spouse, the most important consideration in deciding which parent should have custody is the best interests of the children. 

Divorce: Maintenance (Spouse/Child)

When a couple gets divorced, one party is often in a better financial position than the other. The person who has custody of the children will also have expenses that the other parent does not have. For this reason the court will issue a maintenance order requiring maintenance to be paid for the children and, depending on the circumstances, to the other party. 

How to do an accurate Accrual Calculation

Let's look at a practical example of an accrual calculation. Let say a couple got married in early 2000 with an ante nuptial contract which included the accrual system.

Divorce 101: What is a divorce?

Marriage is a legal bond between two people, and provides those people with certain rights and obligations against each other. The only way to terminate these rights and obligations (as much as possible), is for the parties to obtain a divorce from each other. A divorce therefore legally terminates a marriage. Once a divorce is granted, each partner may then legally marry someone else.

Divorce: Dividing up your property

How the family property will be divided up depends on what property regime the couple adopted when they got married. This will usually be covered in the ante-nuptial agreement if there is one or, if there is no pre-marital contract, then it is determined by law. The default legal position is that civil marriages are in community of property. This means that everything that you own is shared, including property and debts. Accrual means that everything that you earn or buy after you have married also becomes part of the joint estate. If you get divorced, the shared property is divided equally between you. Any debts are also shared.

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