The Divorce Process / Die Skei Proses
DISSOLVING A MARRIAGE.
The divorce process will depend on whether the marriage is a civil marriage or a customary marriage.
Civil marriages are dissolved according to the rules and procedures set out in the Divorce Act.
Marriages in terms of African Customary Law are dissolved according to the civil law but some of the consequences are determined by custom and tradition.
Muslim and Hindi marriages are dissolved in terms of the rites and rituals of the religion.
Grounds for divorce
You can only get a divorce if you show the court that there has been an "irretrievable breakdown" of the marriage or that one of the spouses is mentally ill or continuously unconscious.
Irretrievable breakdown means that the couple can no longer live together and there is no reasonable chance of them resolving their differences. Proof of this can include evidence showing that:
- The couple have not lived together for a while.
- One partner cheated on the other.
- One partner left the other.
- One partner abused the other.
- The couple no longer love each other.
You can get a divorce if your partner has been institutionalised for mental illness for at least two years and doctors don't think that they will ever recover.
You can get divorced if your partner has been unconscious for at least six months and doctors don't believe that they will ever recover.
The divorce process
If you want to ask the court to issue a divorce you need to prepare a summons dealing with:
- Who will have custody of the children.
- How the parent who does not have custody will access the children.
- Who will receive maintenance, how much it will be and how and when it will be paid.
- How your property will be divided up.
Your attorney will advise you of your rights. He will usually then send a letter to your spouse requiring him/her to call in and discuss the matter either personally or represented by another attorney. An attempt will be made to come to an agreement or to reach a settlement prior to the institution of action.
If a settlement cannot be reached, a summons will be issued which will be served on your spouse by the Deputy Sheriff. You may be able to settle the matter at this stage.
If not, following numerous court proceedings, the matter will be set down for hearing before a judge who will then decide the matter for you.
Divorce is painful and often our emotions get in the way of making sound decisions concerning the children and financial matters. You may feel guilty about leaving the marriage and feel you must pay heavily for causing the break-up. You may be thinking of agreeing to support your spouse for a longer period than necessary, or you may be tempted to give your spouse most of your property or give up any rights to share.
Try to think of the long term consequences of the decisions you take. You can’t buy away your guilt. Work on these feelings so that you can make appropriate and rational decisions.
You may feel helpless and inadequate, overwhelmed by the complexity of the 'legal' proceedings.
You have always left 'money matters' in your spouse’s hands and will do so now. In divorce your economic interests are different and may be competitive. Therefore it is important to take control of your own interests and become involved in the money matters. You may also agree to be compliant to please your spouse and avoid conflict, or to get your ex-spouse out of your life as soon as possible.
Your emotions are getting in the way and unless you become aware of this you may be unable to look after your interests or do what is best for your children. A trained counsellor will help you to deal with your emotions. An attorney will resolve other issues and help you to get your legal divorce.