Family Law is an area of law that deals with family matters and domestic relations, which may include –
- marriage, civil unions and domestic partnerships
- adoption and surrogacy
- child abuse and child abduction
- termination of relationships, including divorce, annulment, property settlements
- paternity tests, maintenance, parental rights and responsibilities
- contact rights to children
- parenting plans and mediation
- settlement agreements
- family violence and harassment
- ante nuptial contracts
- liquidation of joint estates
In a diverse society like South Africa, relationships between people can take numerous forms. People can enter into civil marriages, same-sex marriages, customary marriages, religious marriages or domestic partnerships (cohabitation/living together). Marriage, also called matrimony or wedlock, may be defined as a legally recognised, life-long, voluntary union between a man and a woman, or two people of the same sex. The definition of marriage differs according to culture, but is commonly an institution in which an interpersonal relationship, usually intimate and sexual, is acknowledged through the exclusion of all other persons.
Civil marriages have always been recognised and fully protected by the law, and now so are same-sex and customary marriages. Religious marriages are recognised by our courts only in some instances, and domestic partnerships have no legal protection. The formalisation and registration of civil marriages, customary marriages and same-sex marriages (civil unions) are all managed by the Department of Home Affairs. For nearly five decades, civil marriage in South Africa has been governed and regulated by the Marriage Act 25 of 1961.
Customary marriages are recognised through the Recognition of Customary Marriages Act 120 of 1998, which came into effect in November 2000. Following the acceptance of the Civil Union Act 17 of 2006, South Africa became one of very few countries to give legal protection and marriage benefits to partners in same-sex relationships. The legislation was adopted as a direct response to a landmark decision made by the Constitutional Court.
Although purely religious marriages are not recognised as valid marriages by South African law, the courts and the legislature have in the past been prepared to grant piecemeal extensions of the law of marriage to such relationships. Domestic, cohabitation or life partnerships, where two people, regardless of gender, live together without marrying under the Civil Union Act, are not regulated by law. Until domestic partnership legislation is enacted, the position of unmarried domestic partners will continue to be fragmented, inconsistent and fraught with uncertainty.
“Sometimes marriages just do not work out” – Justice Madlanga in DE v RH CCT182/14  ZACC18
It goes without saying that you should not deliver the news that you want to get divorced, over the phone or via email, sms or social media. It will most likely be one of the most difficult conversations you are ever likely to have. Marriage is one of life’s central relationships and seeking a divorce may feel like a tremendous failure. It is not easy to initiate something you know will have great emotional, practical and financial implications for yourself and your children and whatever you do, therefore, do not let your spouse be the last to know.
Most spouses agree on temporary living arrangements during divorce, putting off final decisions until the divorce process has been finalised. Neither spouse is more entitled to stay in the family home than the other and in most cases, it is common for the primary caregiver to stay in the house with the children. Often but not always, that person is the mother. If you intend to share parenting, then the closer the parent of alternate residence lives to the family, the better for the children, as there is less disruption in their school and social lives.
No matter how anxious you are to get out of the house, remember that if you go without your children, the message you will be sending is that you think your spouse is the better parent, who can take better care of your children and since the courts do not like to disturb the status quo, wherever your children go when you separate, is likely where they will stay post divorce. Thus, if you are worried that moving out might lessen your chances of getting a proper parenting plan implemented, rather meet with your spouse and agree on an interim parenting plan while the divorce is pending.
Remember that you may obtain a protection order if you are in physical danger from your spouse. Get out of the house quickly, taking your children with you, and lodge a restraining order, coupled with an application for emergency monetary relief pending divorce, or issue divorce summons immdiately and lodge a rule 43 or 58 application.
A separation or divorce launches everyone involved into unfamiliar territory. Everything is disrupted, your responsibilities and routine, your home, your relationships with extended family and friends, and even your own identity. Healing is difficult, however it is important to keep reminding yourself that, although healing takes time, and you will be needing patience with yourself, you can and will move on. Grief is also a natural reaction to any loss, and a divorce involves multiple losses, therefore you will go through all the emotional stages of grief – denial, anger, bargaining, depression, acceptance.
The divorce process in South Africa is relatively straightforward, yet the financial and emotional consequences can be profound, especially when a divorce is lodged in the High Court. The other harsh reality is that the High Courts in South Africa have overly burdened court rolls, and parties normally have to wait a long time for their divorce matter to go to trial when their divorce is contested. The backlog in cases was somewhat lessened when the Regional Courts Amendment Act came into effect in 2010 to amend the Magistrates’ Courts Act, 1944, so as to allow regional divisions of the magistrates’ courts to also deal with divorce cases.
A divorce action is instituted by the issuing of a summons. You can divorce in either the Regional Court of the Magistrate Court having jurisdiction in your area or in the High Court. To start the divorce process you need to serve a Summons. A divorce summons is unique in that it must be served personally on the defendant by the sheriff of the court.
A court has jurisdiction in a divorce action if one or both parties are:
There are typically two types of divorces, the contested or opposed divorce and the uncontested or unopposed. The latter type of divorce is the best and most cost effective for all parties concerned. Most divorces settle long before going on trial.
In South Africa, the marital regime of the parties determines how the assets will be divided upon dissolution of the marriage, the assets being those at the time of the divorce. In South Africa, we have a ‘no fault’ system of divorce, meaning that a divorce will be granted if one of the parties believes that there has been an ‘irretrievable breakdown of the marriage relationship’ and that there are no reasonable prospects of restoring it. Therefore, a marriage can be dissolved even if one of the parties does not wish to get divorced.
Civil marriages, civil unions and those religious marriages conducted by registered marriage officers can only be dissolved by order of the court. The spouse wishing to end the marriage must issue a summons against the other spouse, stating that the relationship has broken down, that there is no reasonable prospect of restoring the relationship and which matrimonial property regime governs the marriage. The summons must make provision for the division of the estate, either stating that the parties have entered into a prior agreement or asking the court to divide the joint estate or enforce the provisions of the ANC. Parties must also set out what the arrangements are with regards to any children born or adopted during the marriage.
The principle of the best interest of the child prevails – your children are not to blame for your failed relationship.
In order to claim for maintenance, you must first determine the reasonable needs of the child on a monthly basis. There is no hard and fast rule, but generally the child’s share of the common expenses in the household is determined by allocating one-part per child and two-parts per adult or older child.
Only once the child’s reasonable monthly needs have been determined will one be able to establish the contribution that each parent is required to make to meet those needs.
Maintenance cannot be measured in monetary terms alone. Usually, the parent who cares for the child on a daily basis indirectly contributes towards maintenance because of the time they spend together. Notwithstanding this, both parents still have a financial obligation to pay maintenance in accordance with their means, income and expenditures.
Maintenance may need to be adjusted regularly, depending on the changing needs of the child or the financial position of the parents. Once the need for a change in maintenance arises, whether filing a new application or seeking to vary an existing court order/settlement agreement, the applicant can request that the maintenance court –
(a) set aside an existing maintenance order;
(b) make a new maintenance order;
(c) decrease a current order;
(d) amend a current order; or
(e) change an existing order.
Either of the parents can apply to the Magistrate’s Court where the children reside for a variation of the current maintenance order, but only if circumstances change. Examples will be if the father for instance, loses his job or remarries; and, in the mother’s case, where a child may need special care (occupational therapy). It was decided in previous cases that where a father remarries and then has to support a “second” family, this financial obligation shouldn’t impact negatively on his “first” family. A father may not raise a defence that the needs of his second wife is a reason to reduce maintenance in respect of the children of his first wife and also he cannot ask for a reduction in child maintenance due to he himself having caused the reason for the change in his financial circumstances.
Your maintenance case is largely dependent on you proving that your child needs the requested amount. If you do not have proof, or cannot prove it, even if you show that the father can afford it, the court won’t order him to pay it. The court would only order him to pay what is fair and proved. Therefore, always ensure that you keep proof of your income and expenses up to date and ready to provide it to court.
The duty to pay spousal maintenance post-divorce is found in Section 7 of the Divorce Act, 70 of 1979. This duty arise in two ways:
a) Section 7(1) of the Act provides that the court, when granting a decree of divorce, may in accordance with the written agreement between the parties, make an order with regard to the payment of maintenance by one spouse to the other. This is usually in the case where a settlement agreement is entered into between the parties prior to finalisation of the divorce.
b) In terms of Section 7 (2) of the Act and in the absence of a written agreement (settlement agreement) the court may make an order which it finds just in respect of the payment of maintenance by the one spouse to the other by taking various factors into account. The court is required to consider the factors referred to in section 7(2) in order to decide, firstly whether maintenance is to be paid at all and, if so, the amount to be paid and the period for which maintenance is to be paid.
It is significant to note that the word “may” is used in the Act. It is therefore clear that awarding post-divorce spousal maintenance is purely discretionary and there is therefore no automatic right to maintenance on divorce and a party who claims maintenance must prove that he or she is entitled to maintenance. In terms of Section 8 of the Act a maintenance order may at any time be varied, rescinded or suspended.
Where the parties to a divorce did not enter into a settlement agreement Section 7 (2) of the Act provides 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 the death or remarriage of the party in whose favour the order is given, which ever event may first occur”.
If one read the above section it is clear that the factors that a court will take into account when awarding maintenance is not exhaustive and the court has a very wide discretion whether or not to grant a maintenance and for how long maintenance must endure and the amount payable.
Our Supreme Court of Appeal in the case of EH v SH 2012 (4) SA 164 (SCA) found that a person claiming maintenance must establish a need to be supported by the other spouse and that if no such need is established, it would not be “just” for a maintenance order to be issued. Therefore proving a need for maintenance is vital for obtaining maintenance. Our Supreme Court of Appeal also found that the fact that a spouse who is claiming maintenance post-divorce while living with another person is not necessarily barred to claim maintenance, however, if the spouse is being fully maintained by the other person with one he/she is living, he/she does not need maintenance from his or her former spouse after the divorce and such a claim will be dismissed.
Factors that a court will consider when awarding post-divorce spousal maintenance.
Section 7(2) of the Act deals with the factors that a court will take into consideration when awarding maintenance. These factors also come into play when maintenance is negotiated between the parties or during a mediation process which precedes the drafting of a settlement agreement between the parties.
The word “means” refers to a person’s financial resources. It includes not only capital assets but also income from employment and other sources as well as other sources to which a person has access which is not in his or her possession. In K v K 1986 (4) SA 616 (E) it was found that the parties “means” will include property such as a matrimonial home that can be used to generate income or as found in J v J (2004) 1 ALL SA 426 a trust that generates an income. “Means” does however not include a possible inheritance or voluntary payments to a spouse by his/her children from a previous marriage. It is very difficult to determine a person’s prospective means because this will largely depend on how the assets will be divided upon divorce. Therefore maintenance claims can only really be determined once the division of assets have been settled.
After the divorce, the parties should become economically independent of each other as soon as possible. Generally, our courts will always attempt to achieve a complete termination of financial dependence of one spouse on the other if the circumstances permit. This is called the clean-break principle. Where a woman is earning enough or has sufficient income from assets to support herself and maintain her standard of living, the court will generally be reluctant to award maintenance in her favour. A court will not award maintenance in cases where the woman is young, well qualified, has no children or no young children, has worked through all her married life and is in good health, and where the marriage was not of long duration.
Where both spouses worked during the subsistence of the marriage their respective incomes must be taken into account to determine whether or not each party will be able to meet his/her own maintenance needs. The court will look at income from all sources, including tax credits, dividends and fringe benefits. In K v K if was held that the division of roles in families influences not only the past earning capacity of the parties, but also their future earning capacities. The judge in this case also made comment that the courts do not today distribute maintenance with any degree of liberality to woman who can and ought to work after divorce and that in our law no maintenance will be awarded to a woman who can support herself.
A contrary view was taken in the matter P v P 1990 (1) SA 998 (E) where the judge warned that there is a vast difference between the situation where a woman is indeed able to maintain herself because she is in fact working or in fact has assets from which she can support herself and the situation where a notional earning capacity has to be attributed to her. A woman’s ability to earn an income does not by itself this entitle her to maintenance since the reasonableness of her decision not to work must be considered in light of factors such as age, state of health, qualifications, when she was last employed, the duration of the marriage, the standard of living of the parties during the marriage, and a commitment to the care of young children and others.
This position was confirmed in the matter of K v K 2006 (6) SA 127 (C) where the court considered a wife’s decision to remain working only in a part-time capacity to be reasonable since this would be in the best interests of the children. The court also mentioned that when it considers the earning capacity of the parties, it must take note not only of the emancipation of women but also of the fact that the division of roles in families influence not only the past and incapacity of the parties but also the future earning capacity.
In K v K 1986 (4) SA 616 (E) the court stated that this factor means how much money each party needs for their day-to-day living, and how much of the income or resources of each has to be spent for some obligatory purpose. In B v B 2009 (2) SA 421 (C) a case dealing with an application for interim maintenance for the wife and the parties two adult children who resided with a wife, the judge found that in having to use her household budget to run the family home and provide groceries for a 3 member household, the wife incurred an obligation within the meaning of section 7 (2) of the Act.
What constitutes a need for a specific party will naturally depend on the standard of living of the couple during the marriage. What is considered to be a need in one family may be considered a luxury in another. A distinction must further be made between the parties’ needs and wants.
It was held in N v N 1984 (2) SA 294 (C) that: ‘A proper weighing of all these factors is important to counter-balance the inherent immorality that could follow were the sole or even the main criterion for a claim for maintenance to be the plaintiff’s need or ability to maintain herself’.
It was held further that: ‘Had the Legislature intended to preserve the common law and limit maintenance in accordance with a wife’s ability to maintain herself … the Divorce Act could encourage immorality in many ways. It could then be the middle-aged libertine’s charter of freedom. A man could throw out the woman who had shared his bed, ran his home, and reared his children, after twenty years or so, replacing her with something younger and prettier, and claim that his wife is not entitled to maintenance because during twenty years of minding his home and family she had also earned money outside that home … and could now that the children were off her hands work that much harder. On the other hand it would be equally unjust that an indigent woman unable to earn much money could marry a wealthy man, walk out of her wifely duties and try to use him as a meal-ticket for life … I can think of no reason why a blameless husband who has sacrificed his own career advancement and along with it income and pension benefits, in favour of his wife’s, should not be entitled to a contribution towards his maintenance from her, merely because he would not starve without’.
Where a marriage is short-lived, it is normally easier for the spouses to cut all financial ties fairly quickly. Lengthy marriages are more complicated. In many cases, the stay-at-home housewife, because of her age and lack of work experience, will find it difficult to get back into the job market. A court will more likely rule in her favour, as they would for an older woman whose age makes it improbable that she will be able to further her career and improve her employment prospects. Age is also, therefore, a relevant factor in determining whether maintenance will be reasonable or not.
A wife of long standing who has assisted her husband materially in building up his separate estate will be entitled to far more by way of maintenance than one who did no more for a few years. A court will look at the duration of the marriage, and the fact that the wife had not worked for most of the marriage and was not working at the time of the divorce, when it decides to award spousal maintenance or not.
If a couple was married for, say, 20 years and the wife did not work in the open market but only fulfilled the role of housewife and mother, a court will likely award maintenance. It should be noted, however, that courts do not distribute maintenance with any degree of liberality to women who can and ought to work after divorce.
It appears that the parties’ ages and the duration of the marriage are relevant for purposes of determining their respective earning capacities and their financial needs. It is unquestionably true that, commonly, the younger wife and the shorter the duration of the marriage, the easier it will be for her to become self-supporting, but when she is close to retirement age and where the marriage has been of long duration it might be difficult, if not impossible, for her to become self-supporting if she was not employed during the marriage. Even though each case has to be decided on its own facts, it seems that the following quoted in G v G 1987 (1) SA 48 (C) still holds good today:
“Middle-aged women who have for years devoted themselves full-time to the managing of the children of the marriage, are awarded rehabilitative maintenance for a period sufficient to enable them to be trained or retrained for a job or profession. Permanent maintenance is reserved for the elderly wife who has been married to a husband for a long time and is too old to earn her own living and unlikely to remarry”
The standard of living of the parties plays an important role when the court decides on the amount of maintenance that will be payable. Ideally, the standard of living of the parties should not decline after divorce. At best, maintenance should enable you to maintain your standard of living. The court will balance the needs of both parties and each case will be decided upon its own facts. Where money is no object there is no reason why a divorced wife and her children should not continue to enjoy the same standard of living as during the marriage.
The court has a wide discretion and is not bound to refuse a wife’s claim for maintenance simply because she can support herself. If supporting herself means she will have a substantially lower standard of living, the court may award her maintenance. It will always depend on the facts and circumstances of the case and what the court considers to be just.
In P v P 1990 (1) SA 998 (E) the court stated that: ‘a wife should, in my view, be able to expect the same standard of living that she had as a married woman. In most cases it may not be possible to achieve this goal, and of course a husband should be entitled to the same expectation, but in the final result it is a question of balancing up the needs of both parties and making an equitable distribution of the available income’.
In MB v NB 2010 (3) SA 220 (GSJ) it was held that ‘the proper approach is to postulate that the parties should each continue, following divorce, to live in the style to which they have become accustomed for so long as this was permitted by the resources at their disposal. If, as so often happens, the capital and income are insufficient to meet this standard, then each should abate their requirements accordingly. In this limited sense the touchstone is subjective: The issue is not what people generally would regard as reasonable … but what the parties have come to depend on, subject always to the criterion of affordability’.
Since divorce is no longer based on matrimonial fault, post-divorce spousal maintenance can no longer be considered a form of penalty for misconduct. Before the court will consider the conduct of the parties as far as it was relevant to the breakdown of the marriage, the court must first assess whether the conduct is indeed relevant. Adultery and desertion, for instance, might merely be symptoms and not causes of the marriage breakdown and, as such, although serious, may not be taken into consideration by the court.
As far as the marriage is concerned, an overall picture must be formed. For instance, if a husband who was unable to work because of ill health, and whose wife supported him morally and financially for a number of years, becomes wealthy and disregards his wife after she has given him her best years, a court may well award spousal maintenance to her if it is proven that his gross misconduct caused the marriage breakdown. In such circumstances, a court will take the husband’s (mis)conduct into account.
In G v G 1987 (1) SA 48 (C) for example the court viewed the husband persistent adultery as gross misconduct and stated that it must inevitably play no small part in deciding whether or not to award maintenance to the wife. The wife who had a professional qualification was awarded permanent maintenance. Domestic violence which contributed to the breakdown of the marriage, especially severe domestic violence, should also be taken into account as gross misconduct.
The following factors are among those that have been considered by our courts:
1. The best interests of the spouses children;
2. The childcare responsibilities of the dependent spouse;
3. The high rate of inflation;
4. The way in which each party conveyed his or her financial position and needs.
How to calculate the amount of a spouse’s monthly maintenance needs
Once it has been established that espouses entitled to maintenance section 7 (2) of the Act will determine the amount and duration of the maintenance. A study in England of divorce cases indicates that maintenance orders usually range between 14% – 34% of the maintenance debtor’s income. There is however no formula in South Africa that one can use. The first step to determine the needs is to draft an income and expenditure for each of the parties. In cases where minor or dependent children have to be maintained by the divorcing parties it is impossible to calculate the parties monthly maintenance needs in isolation. Therefore one must include in the budget each party’s specific expenditure in respect of the children.
The spouse with whom the dependent children will reside will obviously have more expenses in respect of the children. As a rule of thumb certain household expenses which are incurred for the benefit of both the care-giving parent and the children, such as bond installments, water and electricity accounts, and groceries, should be shared by apportioning one part to very young children in two parts to each of the older children and to the particular spouse. For example, if the care giving parent has three children, aged 4, 12 and 22, that reside with him or her, the youngest child will be allocated 1/7 of such expenses and the older children and the parent 2/7 each.
Other specific individual expenses which cannot be apportioned between family members, such as creche, school or university fees, the cost of extramural and/or recreational activities, club and professional membership fees should be allocated in full to the relevant child or spouse.
Maintenance payments is after-tax income and should be included in the expenses list. Although maintenance payments are deemed to be the income of the maintenance recipient in terms of the definition of “gross income” in the Income Tax Act 58 of 1962, they are simultaneously exempted from tax.
(spousal maintenance – copyright Lawsplash Bertus Preller)
You are not crazy. You were abused. You are a survivor.
Domestic violence is the willful intimidation, physical assault, battery, sexual assault, and/or other abusive behavior as part of a systematic pattern of power and control perpetrated by one intimate partner against another. It includes physical violence, sexual violence, psychological violence, and emotional abuse. The frequency and severity of domestic violence can vary dramatically; however, the one constant component of domestic violence is one partner’s consistent efforts to maintain power and control over the other.
Domestic violence is an epidemic affecting individuals in every community, regardless of age, economic status, sexual orientation, gender, race, religion, or nationality. It is often accompanied by emotionally abusive and controlling behavior that is only a fraction of a systematic pattern of dominance and control. Domestic violence can result in physical injury, psychological trauma, and in severe cases, even death. The devastating physical, emotional, and psychological consequences of domestic violence can cross generations and last a lifetime.
It is not always easy to determine in the early stages of a relationship if one person will become abusive. Domestic violence intensifies over time. Abusers may often seem wonderful and perfect initially, but gradually become more aggressive and controlling as the relationship continues. Abuse may begin with behaviors that may easily be dismissed or downplayed such as name-calling, threats, possessiveness, or distrust. Abusers may apologize profusely for their actions or try to convince the person they are abusing that they do these things out of love or care. However, violence and control always intensifies over time with an abuser, despite the apologies. What may start out as something that was first believed to be harmless (e.g., wanting the victim to spend all their time only with them because they love them so much) escalates into extreme control and abuse (e.g., threatening to kill or hurt the victim or others if they speak to family, friends, etc.). Some examples of abusive tendencies include but are not limited to:
Accusing the victim of cheating
Keeping or discouraging the victim from seeing friends or family members
Embarrassing or shaming the victim with put-downs
Controlling every penny spent in the household
Taking the victim’s money or refusing to give them money for expenses
Looking at or acting in ways that scare the person they are abusing
Controlling who the victim sees, where they go, or what they do
Preventing the victim from making their own decisions
Telling the victim that they are a bad parent or threatening to hurt, kill, or take away their children
Threatening to hurt or kill the victim’s friends, loved ones, or pets
Intimidating the victim with guns, knives, or other weapons
Pressuring the victim to have sex when they don’t want to or to do things sexually they are not comfortable with
Forcing sex with others
Refusing to use protection when having sex or sabotaging birth control
Pressuring or forcing the victim to use drugs or alcohol
Preventing the victim from working or attending school, harassing the victim at either, keeping their victim up all night so they perform badly at their job or in school
Destroying the victim’s property
Dictating how the victim dresses, wears their hair, etc
Stalking the victim or monitoring their victim’s every move (in person or also via the internet and/or other devices such as GPS tracking or the victim’s phone
It is important to note that domestic violence does not always manifest as physical abuse. Emotional and psychological abuse can often be just as extreme as physical violence. Lack of physical violence does not mean the abuser is any less dangerous to the victim, nor does it mean the victim is any less trapped by the abuse.
Additionally, domestic violence does not always end when the victim escapes the abuser, tries to terminate the relationship, and/or seeks help. Often, it intensifies because the abuser feels a loss of control over the victim. Abusers frequently continue to stalk, harass, threaten, and try to control the victim after the victim escapes. In fact, the victim is often in the most danger directly following the escape of the relationship or when they seek help.
Unfair blame is frequently put upon the victim of abuse because of assumptions that victims choose to stay in abusive relationships. The truth is, bringing an end to abuse is not a matter of the victim choosing to leave; it is a matter of the victim being able to safely escape their abuser, the abuser choosing to stop the abuse, or others (e.g., law enforcement, courts) holding the abuser accountable for the abuse they inflict.