Misconceptions That Exist Within Divorce Proceedings in South Africa

At SKV Attorneys, when dealing with divorce matters we often come across certain misconceptions which exist when one is contemplating instituting divorce proceedings. Regularly, we learn that these fallacies are due to friends or family members whom promote inaccuracies by searching the internet – in the hope of rendering assistance. The truth of the matter is that one cannot compare divorce proceedings from different Countries, as the matrimonial laws applicable to each Country will differ vastly.

In most instances these misconceptions act as a barrier for someone to institute divorce proceedings. We now intend to elucidate and demystify some of these well-known misconceptions which have unfortunately created a foothold within the South African matrimonial law:

1: Some form of a counselling has to be attended and/or completed before one can institute divorce proceedings.

During divorce proceedings and on the day of your actual divorce, at Court, the Presiding Officer will not inquire from the Parties as to whether they have actively pursued marriage counselling before instituting divorce proceedings. If, however, you wish to pursue this avenue prior to your divorce, then you can do so but it is most certainly not a prerequisite for the institution of divorce proceedings.

2: I have not separated from my spouse and therefore I am not able to institute divorce proceedings.

It is not necessary for one to first separate from your spouse before instituting divorce proceedings. Living separately form your spouse for longer than six months is certainly grounds for institute divorce proceedings, however it is not a prerequisite and the Attorney can advise their Client on other possible grounds in order to still proceed with the divorce, i.e. if the Parties are unable to communicate effectively, alternatively, if the Parties have lost their love and affection for each other, these are all alternative grounds for instituting divorce proceedings.

3: What if my spouse is not willing to consider divorce proceedings, can I still proceed on my own?

The short answer is yes. To institute divorce proceedings it only requires one spouse to proceed. You do not require your spouse’s consent in order to institute divorce proceedings. It must be said that if both Parties intend to proceed with a divorce then it can shorten the litigation process by entering into a settlement agreement prior to the divorce summons being issued, however it is not a precondition that has to be adhered to.

4: One can only institute and proceed with a divorce action if your spouse is at fault.

The South African matrimonial system is a no-fault system. In other words one can still proceed with a divorce action if the marriage has irretrievably broken down. This can be your subjective view of the marriage and it is not required that a specific spouse must be at fault i.e. conducting an extra martial affair before the other spouse can institute divorce proceedings.

5: I want to proceed with a divorce but I’m financially unable to do so.

In some instances, were a divorce remains contested without a settlement agreement, it can become a lengthy process before the final Decree of Divorce is granted. In this instance one can request a Court to grant interim spousal maintenance and interim child maintenance whilst the divorce proceedings are ongoing. The successful spouse will then receive monthly remuneration from the other Party to conduct and compensate for their monthly expenditure until the divorce is finalised. This can be done by a way of a Rule 43 Order, alternatively in the lower Courts, by way of a Rule 58 Order.

6: The minor child has voiced their opinion on whom they want to reside with after the divorce.

The Children’s Act, 38 of 2005 takes into consideration the minor child’s age, stage of maturity and development when considering the child’s opinion. This is but one of the factors which the Family Advocate’s Office or private Child Psychologist will take into consideration when deciding whom the child should primarily reside with after date of divorce. Other factors include, stability and family structure, views expressed by siblings, work requirements and working hours of each spouse and ability to cater for the well-being of the minor child, holistically. There still remains various other factors which will also be taken into consideration. 

7: I don’t necessarily want to take the child away from the other parent.

In recent years depending on the specific set of circumstances applicable on each divorce matter, where minor children are involved, the office of the Family Advocate or private Child Psychologist have started to adopt a view of shared residency. This is where each parent will enjoy contact towards the minor children on a weekly basis. The purpose therefore is that the minor child will spend an equal amount of time with each of it’s respective parents. Given the right set of circumstances it could be recommended that shared residency is the best option in your situation. 

8: All of our assets are going to be divided on an equal basis.

Again, we have to stress that the matrimonial systems between countries differ and even within the borders of South Africa there are three main matrimonial systems applicable on each marriage, one would either be married in community of property, outside of community of property excluding the accrual system or outside of community of property including the accrual system. It is of paramount importance that the Client obtain sound legal advice specific to their matrimonial regime as this will have an inherent influence on the division of assets. In addition hereto, as have been indicated above, a Party can still enter into a settlement agreement with their spouse which in turn will then regulate by agreement the division of assets. 

9: My spouse earns more than me and therefore they will have to pay all of the minor child’s expenses.

Broadly speaking maintenance in respect of a minor child is firstly determent by calculating what the reasonable monthly needs are specific to each minor child. Hereafter the monthly expenditure, once calculated, is to be divided between the Parties given their specific income ratio. There are numerous myths surrounding the payment of child maintenance, the calculation however is a simple one and one should avoid these myths at all costs. 

To learn about other legal services we offer please visit our website https://www.skvattorneys.co.za/

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Company Name: SKV Attorneys Inc.
Contact Person: Philip Smith
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Phone: 011-781-2392
Address:368 Oak Avenue
City: Randburg
State: Gauteng
Country: South Africa
Website: skvattorneys.co.za