Divorce & Family Law

What are the grounds for divorce?

In terms of section 4(2) of the Divorce Act, circumstances are set out which the Court within its discretion, may accept as evidence of an irretrievable breakdown in your marriage:

  • That you have not lived together as husband and wife for a continuous period immediately prior to the divorce, this does not necessarily mean that you must have lived in separate buildings, but the court is generally not willing to grant a decree of divorce if you are still living in the same house on the date the divorce order is applied for, unless a reasonable explanation can be tendered.
  • That you or your spouse has committed adultery and as a result you strongly feel that you cannot continue with the marital relationship;
  • That your spouse has in terms of a sentence of the court been declared an Habitual Criminal and is undergoing imprisonment as a result of such sentence.
  • Other general grounds include, a breakdown in communication; loss of love and affection; the fact that you no longer share any common interests as well as mention of any physical, verbal, alcohol or drug abuse within the marriage.

In general a Court has no discretion to deny a divorce where the irretrievable breakdown of the marriage has been proved.

What is the position if children are involved?

In divorce matters involving children a Family Advocate is appointed in order to investigate the best interests of the children in terms of matters, concerning maintenance, access and custody.

Maintenance

This encompasses the payment of money towards the maintenance for the child or spouse in accordance with his or her respective needs.

When the court makes a maintenance order, following factors are taken into account:

  • Earning power
  • Current or expected wealth.
  • Ages of the parties.
  • Duration of the marriage.
  • Standard of living before divorce.
  • Behaviour insofar as it is relevant to the breakdown of the marriage.
  • Any other factor the court deems should be taken into account.

What is a Redistribution Order?

In terms of the Divorce Act, a court order may order a spouse to transfer a portion of his estate to the other spouse if the court is satisfied that the spouse directly or indirectly, financially or otherwise (for example by assisting the other spouse to effect savings, or by rendering other services or forms of assistance), contributed to the increase or maintenance of the other spouse’s estate.

Redistribution orders apply to spouses married out of community of property before the month of November 1984, without any form of accrual.

What is a Forfeiture Order?

Underlying principal in respect of the forfeiture of patrimonial benefits is that no one should benefit financially from a marriage, which he or she has caused to fail.

The court therefore has the discretion to order that one spouse loses the claim, which he or she has, to the assets for the other spouse or any other benefits the spouse would have ordinarily been entitled to.

Is there any interim relief that can be obtained before the decree of divorce is granted?

Before finalisation of the divorce action, application can be made to court in respect of the following:

  • Interim custody and control or access to a child;
  • Maintenance for the wife and/or the children;
  • An interim contribution towards the legal costs of the pending divorce action.

Other Services

We are also able to assist you in the following areas of family law:

  • The obtaining of family violence interdicts in terms of the Prevention of Family Violence Act;
  • The removal of an abused/neglected child to a place of safety in terms of the Child Care Act;
  • Guardianship and custody of a minor;
  • The legal consequences of co-habitation;
  • The right to access and the obligation to pay maintenance in respect of illegitimate children;
  • Rescission, suspension or variation of maintenance orders;
  • Advice on and consideration of an appropriate matrimonial property regime;
  • Advice on and drafting of Antenuptial Contracts.

 

The abolition of the statute of limitation for sexual assault offences

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The Court ruled that there should no longer be a restriction of the 20 year period in order to pursue a claim for sexual assault. 

This application was based on the case of the deceased philanthropist and established stockbroker, Sidney Frankel. 

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Posted by Moya Rossouw on Friday, June 23, 2017 Views: 347


Protection Orders in Domestic Violence and Abuse Cases

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Domestic violence is a sad reality for many families in South Africa.  

Domestic violence is where a person (“the complainant”) is being harmed by another person (“the respondent”) while they are in a domestic relationship.

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Posted by Yolande Smith on Friday, March 17, 2017 Views: 1547


Better position for Muslim women in customary marriages

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Schuaib and Faheema were married in 1988 in accordance with Muslim rites. At the time of their marriage, Schuaib was already a spouse in a pre-existing civil marriage with his first wife Nadia.

Faheema is a housewife and has no income, she relies solely on Schuaib to maintain her and the household.

Faheema is afraid that if she divorces Schuaib she will have no claim to maintenance or proprietary relief as marriages that are concluded solely according to Muslim rites are not legally recognised in South Africa. What can Faheema do?

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Posted by Moya Rossouw on Thursday, December 24, 2015 Views: 1152