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In South African family law a marriage can be ended in one of three ways:
  • By the court annulling a voidable marriage;
  • by the death of one or both spouses;
  • by a divorce order.

In addition to these three ways of dissolution the court can declare a marriage to be regarded as dissolved as from a specific date. This is in the case of a common law presumption of death order. This order does not automatically end a marriage, but a spouse can bring a separate application that the marriage be dissolved. The court order is final and even if it would later transpire that the missing person is still living, the marriage will no longer revive.

i) We will now look at the dissolution of a marriage by means of a divorce order:

Here is a general summary of the grounds for divorce in the Divorce Act:
Irretrievable breakdown of marriage

A court can award a divorce order based on the irretrievable breakdown of marriage if it is convinced that the marital relationship between the parties in the marriage has reached such a state of breakdown that there is no reasonable prospect of a normal marital relationship being resumed between them.

The law then proceeds and gives examples of cases that usually would be an indication of the irretrievable breakdown of a marriage. They are the following:
  • The parties have not been living together as man and wife for an uninterrupted period of at least a year.
  • One spouse has committed adultery and it is unthinkable for the other spouse to continue with the marital relationship.
  • One spouse has been declared by the court to be a habitual criminal and is consequently serving a prison sentence.

However, the above cases are merely examples and are not the only examples of breakdown. There can be other more “neutral” reasons for breakdown as well, such as a lack of communication and violent actions against the other party. Every case has its own facts and it is the job of the court to determine whether the marriage has in fact disintegrated and whether it may have a chance at recovering.

Mental derangement and continued unconsciousness
A divorce order can be obtained as a result of mental derangement if it can be proven that:
  • the other spouse has been admitted as a patient in an institution;
  • the other spouse had not been released unconditionally from the institution before the divorce action was instituted; and
  • the other spouse is mentally ill without there being any reasonable prospect that he or she will recover from the disease.
A divorce order can be obtained as a result of continued unconsciousness if it can be proven that:
  • die ander gade permanent bewusteloos is;
  • die bewustelose toestand reeds vir ‘n tydperk van ses maande voor die instel van die aksie aanwesig was; en
  • daar geen redelik vooruitsig is dat die gade sy of haar bewussyn sal herwin nie.

ii) Steps in a divorce

– The spouse wanting the divorce (the plaintiff), takes his or her marriage certificate and consults an attorney.

– The attorney draws up a summons against the other spouse (the defendant). Along with the summons the attorney draws up a details of progress document. This documents sets out the plaintiff’s demands, in other words what the plaintiff wants out of the divorce, e.g. custody of the children and the division of the estate

– If the defendant does not agree with the demands, he or she must provide the plaintiff and the court a notice of intention to defend within ten days. In a case where the divorce action is defended, both parties must be present in the court on the day on which the order is granted. If the parties agree about the terms of the divorce order, the attorneys of the parties then draw up a document of consent, which is known as the settlement.

– If the defendant does not want to defend the action, only the plaintiff has to appear in court on the day concerned.

iii) Maintenance

– Maintenance of a spouse

The parties can agree in writing about the maintenance one spouse will pay the other. Such an agreement can be made an order of the court.

In the case where there is no agreement in writing between the parties about the payment of maintenance, the court makes an order concerning the payment of maintenance by one spouse to the other. Section 7(2) of the Divorce Act sets out a number of factors that the court must consider in order to decide whether a maintenance order must be granted and the amount of maintenance needed.

These factors are the following:

  • The existing or expected means of each of the parties.
  • The respective earning abilities of the spouses.
  • The financial needs and obligations of the spouses.
  • The age of the spouses.
  • The spouses’ standard of living before the divorce.
  • Their conduct as far as it relates to the breakdown of the marriage.
  • Any other factors that have to be considered.

After considering the factors the court will make an order it considers to be fair about the payment of maintenance by one partner to the other.

A maintenance order can be granted for a specific term, or until the death or remarriage of the person who is entitled to maintenance.

– Maintenance of a child

In terms of the law it is the duty of both parents to maintain their dependent children according to their ability. The maintenance order is granted in the best interest of the child. The obligation to pay maintenance continues for as long as a child (even a major child) requires maintenance and the parents are able to meet the child’s needs.

The following factors are relevant to the court when determining the amount of maintenance to be paid: the child’s age, state of health, educational needs, the parents’ financial position and the standard of life of the family.

A maintenance order usually indicates until which age maintenance must be provided. In the absence of such a provision the obligation to pay maintenance will continue until it is withdrawn in terms of a court order.

Any family member looking after the child full time can apply to the maintenance court for one of the parents, or the parents of one of the parents (the grandfather or grandmother) to provide maintenance. The person from whom maintenance is claimed must be able to afford it.

– Application for maintenance

Ask any maintenance officer at your nearest maintenance court to help you complete the required forms. Work out how much the child costs you each month and write down every sum of money expended. If a maintenance order is granted, there are various ways in which it can be claimed: A cash payment that is paid monthly to the court, direct payment into your bank account, or a deduction order where the business for whom the person works deducts the maintenance from his salary and pays it into your account.

iv) Care (control and custody)

Care (custody) can be divided into:

  • Joint custody; and
  • Sole custody.

Where parents exercise joint legal and joint physical care, they contribute equally to decision-making about the children’s needs as far as their needs for development and welfare are concerned. They also spend their time sharing time with these children. This situation puts pressure on the children and may also cause personal practical problems regarding the children’s routine, education, etc.

Such an arrangement will also cause practical domestic problems, e.g. providing two households that are both equipped to provide for the child’s needs on a permanent basis. These kinds of arrangements are usually not practicable and are therefore not made as a rule.

Joint custody is granted more generally. Both parents share in the long-term decision-making about the child’s welfare and needs for development, but the physical care is assigned to one of the parents.

Sole custody will not be granted lightly to a parent because of the restrictions it places on the rights of the other parent.

When sole custody is granted, the parent concerned has exclusive legal and physical custody rights regarding the child. Awards of this kind are restricted to cases where the non-custodial parent is regarded as incompetent as far as responsibility is concerned, e.g. he or she may be a drug addict. The non-custodial parent may apply for partial visitation rights, which will exercised under supervision in cases where previous child abuse, etc.was reported.

In any of the above a parent may request an interim order if there are good reasons for it, e.g. in cases involving child abuse.

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