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.
if you chose the wrong spouse, make sure to choose the right divorce attorney
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:
- domiciled in the area of jurisdiction of the court on the date on which the action is instituted; or
- ordinarily resident in the area of jurisdiction of the court on the said date and has/have been ordinarily resident in South Africa for a period of not less than one year immediately prior to that date.
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.
“sometimes marriages just do not work out” –
Justice Madlanga in
DEvRH CCT182/14 ZACC18
Monica Drotsky & Anne-marie du Toit
the principle of the best interest of the child prevails – your children are not to blame for your failed relationship