Grounds for Divorce

The main ground for divorce is an “irretrievable breakdown of the marriage”. This can include the following:

  • That the parties have not lived together as husband and wife for a continuous period of at least one year.
  • That one of the spouses has committed adultery. That the spouses no longer communicate, that they have lost their love for each other, that they fight continuously and no longer wish to be married.

Opposed or unopposed

A divorce can either be opposed or unopposed. An unopposed divorce is where the spouses come to an agreement about the terms of the settlement. An opposed divorce is where the spouses cannot come to agreement and the court must make a decision with regard to the assets and the minors. An opposed divorce is a costly and lengthy process.

Maintenance

Maintenance is the payment of a sum of money from one spouse to another for the maintenance of the spouse and/or the children. Either the husband or the wife can claim maintenance from their spouse. The spouse who is in a better financial position would usually pay maintenance. The courts will often not grant maintenance to spouses, especially where the person claiming maintenance is still young or will easily get employment, or where the marriage was of short duration. The court tries to encourage a “clean break” between the parties.

Either spouse may apply for rehabilitative maintenance. This would include maintenance for a shorter period of time, usually enabling the person to seek employment and to establish a new home.

Applications can be made to the court to have maintenance increased or decreased, depending on the situation of the parties. The court can also be approached for criminal charges for not paying maintenance and emolument orders on the other party’s salary.

Assets

The assets will be divided in accordance with the form of marriage which was chosen initially. The division of the assets will usually follow one of the following patterns:

  • Marriages in community of property: All the assets of both spouses are joined together and are then equally distributed.
  • Marriages out of community of property: Each spouse keeps their own assets. There is no joint estate to be divided.
  • Marriages out of community of property with the accrual system: Each spouse keeps his/her assets which he/she had before marriage. The value of all the assets which each individual has accumulated during the marriage is calculated and added together. The spouse who has accumulated assets with the greater value will have to pay the spouse with the lesser assets half of the difference in the value.

Regardless of which marital system was chosen, nothing prevents the parties from reaching an agreement regarding the distribution of the assets. Business interests and pensions of each spouse should also be considered when reviewing assets.

Interim Relief

This allows either spouse temporary relief while the divorce has not been finalized. Interim relief can be sought in the following circumstances:

  • To allow temporary custody, access to and control of children.
  • To obtain maintenance for one of the spouses and/or minors until the divorce is finalized.
  • To assist one of the parties to pay for the costs of the divorce.

Interdicts

Either spouse may apply for an interdict to prevent any violence or abuse against themselves or the minors. An interdict which prevents the other party from selling assets may also be obtained.

Time Period:

  • Unopposed : 3 to 6 weeks\
  • Opposed: Variable, dependant on the availability of High Court dates.

Documents Required:

  • Identity Documents;
  • Marriage contract;
  • Marriage Certificate;
  • List of joint and separate assets and incomes;
  • List of liabilities;
  • Pension fund and long term insurance policy information.