South Africa: Frequently Asked Questions About Divorce

Last Updated: 7 November 2019
Article by Tania Abbotts

Here are some FAQ's about divorce.

How much does it cost to get a divorce?

Divorces are unique to the individuals wanting the divorce as they depend on the circumstances surrounding the marriage. At Hammond Pole, we offer advice and assistance in determining the best route to take in reaching the most favourable outcome to our clients in the least amount of time. The cost of your Divorce will depend on the circumstances of your situation (whether there are minor children born of the marriage, your assets, maintenance claims, etc.) at the time of divorce.

How long does it take to get a divorce if uncontested?

Depending on the time it takes to get the settlement agreement agreed upon and signed by both parties, and when the legal documents that accompany the settlement agreement, ie the summons, is served via sheriff, the entire process can take anything between 4 to 8 weeks.

How long does it take to get a divorce if contested?

A contested divorce can be contested on various aspects. If the disagreement between the parties is regarding minor children, then we will be in the hands of the family advocates in assisting with assessing what would be in the best interests of the minor children. If the disagreement is in respect of the financial aspects of the marriage, then the assistance of an auditor may be required in providing values for the estate after investigating same. A contested divorce can take anywhere from 6 months onwards depending on how severe the disagreement between the parties is as well as how intent the parties are on getting the divorce.

Do I need a divorce attorney to get a divorce?

It is always recommended that you seek the advice of an attorney before taking a matter to court. Various aspects regarding your marriage can alter any benefits or liabilities the parties may have in respect of the marriage. In respect of a simple divorce where the parties agree, an attorney could be consulted purely to ensure that the parties are on the right track and they have their interests protected as best as possible. It is important to ensure your rights are fully protected before having the divorce finalised as it is very difficult to amend a decree of divorce once granted.

Can I remarry while going through my divorce?

No. Whilst some South African's choose enter into polygamous marriages in respect of their religion or culture, the courts only allow one civil marriage per citizen. Entering into another marriage before your divorce is finalised would therefore render you in a polygamous marriage and the court will view your first marriage as the one in existence. The legal consequences afforded to marriages, and married couples, would only be applicable to the first marriage. You can check whether you are listed as married or divorced with the department of home affairs by sms'ing the letter "M " and your Identity Number to 32551 (R1 per sms will be charged by your network service provider).

Do I have to go to court to get a divorce?

Yes. Only a Regional Court or a High Court can grant you a divorce. It is important to approach a court that has jurisdiction to hear the matter. This is determined by looking at where you or your partner are domicilied. The plaintiff (person requesting the divorce) needs to attend court on the day of the hearing as the Judge or Magistrate, depending on which court you approach, will question the person requesting the divorce. Normally these questions will depend on the facts surrounding the divorce and whether the divorce is uncontested but ultimately the Judge or Magistrate will confirm in an uncontested divorce that you are married, that you and your partner want the divorce, and that all aspects regarding the minor children have been dealt with in the settlement agreement.

What is spousal maintenance?

Spousal maintenance is when one party to a marriage becomes liable to support the other party during and even after a divorce is finalized. It gets awarded in a divorce if the situation surrounding the divorce warrants same. In order to be successful, the courts looks at the following factors: reason for the divorce, duration of the marriage, whether there was any fault from either party leading to the divorce, whether a party was dependent on the other party during the marriage, what role each party played in the marriage as well as any other factor that the court deems relevant.

Can I claim maintenance while the divorce is ongoing?

Yes. This would be called interim maintenance and can be applied for using a rule 43 application. It is possible to apply for both spousal maintenance and child maintenance using this mechanism. Again the court ultimately has discretion therefore it is imperative that legal advice is sought in order to assess the parties affordability and prospects of success before bringing such an application.

What is the difference between "custody" and "access" of children?

Strictly speaking, custody and access are not really rights conferred in respect of the children's act in South Africa. These are concepts often heard in discussions or on television. The children's act assigns 4 main rights and responsibilities on parents in respect of minor children. These are as follows: the right of contact, and the right to care (these two would be seen as similar to access and custody), the obligation to maintain and the right of guardianship over the minor child. Care refers to a parents right of residency over the child as well as the day to day looking after the child whereas contact is more broader and refers to telephonic access or access on weekends (similar to the notion of visitation rights).

What is child maintenance?

Child maintenance is an obligation imposed on the parents of a minor child, when the child is not residing with both parents at the same time. It was created for the benefit of the parent that is awarded primary care of the child as they can recover some of the expenses incurred in respect of the minor child from the other party that is not awarded primary care of the child.

Who is liable for maintenance of the children?

Both parents are liable for maintenance towards the minor child. Should the parents disagree in a divorce or after the have split up on how much maintenance is payable then they can approach a maintenance court who will then consider the affordability of each parent by looking at their income, their expenses and what the child reasonably requires. The court can then either award maintenance equally or may award maintenance on a pro-rata scale in accordance with each parties earning capacity.

How long is maintenance payable for?

The time that Maintenance is payable is usually dependent on the child reaching the age of majority, currently this is the 18 years of age. But due to the social circumstances currently present in families of today, maintenance is now awarded until the child is no longer dependent on their parents. It is important to distinguish though that in the event of their being a settlement agreement, then the parties are liable for maintenance according to what they agreed upon.

Am I entitled to a portion of my spouses retirement?

This is dependent on the regime in which the parties were married. If the parties were married out of community of property without the accrual system being applicable then no. Neither party can claim either retirement or pension benefits unless the parties agree to it in a settlement agreement. However if the parties were married in community or property or out of community of property with the accrual system being included then yes, a party would be entitled to a portion of the other parties retirement and or pension benefits if same are seen as an asset to the estate.

Published 27 May 2018

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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