A couple may be separated for any amount of time. A long period of separation could signify the irretrievable breakdown of the marriage.
Does it matter who files for divorce first in South Africa?
No, it does not matter who files for a divorce in South Africa. The outcome would largely be the same.
Is adultery illegal in South Africa?
For something to be illegal, it should have been criminalised. Adultery is not a crime in South Africa. In relation to divorces, if a party has committed adultery, it is a reason for a divorce.
What a woman should ask for in a divorce settlement?
There are various things a party may ask for in a divorce settlement. This is so whether or not you are a male or a female. However, if you are a female and you are not self-supportive, then it is suggested that you ask for alimony or personal maintenance in your divorce settlement. If you are on your spouse’s medical aid scheme, we suggest that you ask that you continue to remain on your spouse’s medical aid scheme after the divorce.
What if my husband filed for divorce first?
In principle, there is no difference whether or not a wife or a husband files for divorce first. If the marriage has broken down irretrievably, then the sooner a spouse can Institute divorce proceedings, the sooner the divorce can be finalised.
What can you not do when getting a divorce?
Once a couple divorced, they are no longer married. Therefore, they may remarry immediately and move on with their lives. They can purchase property go into debt and so on without the consent of their former spouse. Therefore, unless the divorce order says otherwise, a divorced spouse may do anything lawfully which he or she could have done before he or she initially got married.
What is the wife entitled to in a divorce in South Africa?
There is no specific legal provision in our law that affords a wife something after a divorce. However, what a spouse usually claim if there is a case for it is alimony or personal maintenance after the divorce. If the wife is the one who will have custody over the minor children after the divorce, she may claim child maintenance and related expenses.
Is spousal maintenance mandatory in South Africa?
Spousal maintenance or alimony is not mandatory in South Africa. If a spouse wants to claim spousal maintenance or alimony, he or she must prove to the court that he or she is entitled to it.
Can you date while separated in South Africa?
In South Africa, the law does not prohibit one spouse from dating another person after they have been separated.
Do I get half of my husband’s pension in a divorce?
A spouse would share in the pension of the other spouse if they were married in community of property. If the parties were married out of community of property with the inclusion of the accrual regime, then in such a case he or she would be entitled to a portion of the pension when calculating the accrual.
How do I divorce my wife and keep everything?
The only way in which a spouse can divorce the other spouse and keep everything he or she owns is if they were married to each other out of community of property with the exclusion of the accrual regime. If that was not the case, they would have to share in either the Joint Estate or accrual.
What are the rights of a woman after a divorce?
A spouse’s rights after the divorce would be based upon the divorce decree. If the divorce decree does not stipulate anything other than a decree of divorce, then such a spouse would not have any rights against the other spouse except for that regarding minor children. If the court made an order regarding personal maintenance or alimony then that specific rights would be standing.
Who gets the house in divorce South Africa?
If the house belongs to the joint estate, the couple can agree that it goes to a specific spouse. However, if they cannot agree, then the house would have to be sold and the proceeds divided equally.
Is South Africa a mother or father state when it comes to child custody?
There is no preference for a mother or father when it comes to a divorce. What the court looks at is what is best for the children.
Can a wife take everything in a divorce?
It is possible if the parties agree to it. If not, then one would have to look at the principles applicable to their matrimonial property regime.
How do I protect myself financially from my spouse before getting married?
You would have to ensure that you get married out of community of property. You may consider getting married with the accrual regime or without.
How can I hide money from my husband?
If you are married in community of property, you and your husband would own half shares of everything. This includes debt.
Can you kick your spouse out of the house in South Africa?
No, you cannot. However, you may approach a court of law should there be domestic violence. In such a case, the court may order that the spouse move out.
Who qualifies for alimony in South Africa?
A spouse that does not have an income and that has always been supported by the other spouse may qualify.
Does adultery affect divorce in South Africa?
It is grounds for divorce if it broke down the marriage.
Is a sexless marriage normal?
It depends on the stage of the marriage and the age of the couple. You would need to go for marriage counselling. The counsellor would speak to both you and your spouse and see what the problems are and try to assist you in resolving it. It is important that the couple partakes in meaningful communications and counselling. If one or both of the parties are not interested in resolving the issue, then it is sure to fail.
How do husbands hide money before divorce?
One way is to let another person keep it.
How can you prove someone is hiding their income?
You would have to have documentary proof. If the matter is at court, then you can subpoena the employer.
Why would a man stay in a sexless marriage?
If there is love and a bond beyond sex. You would need to go for marriage counselling. The counsellor would speak to both you and your spouse and see what the problems are and try to assist you in resolving it. It is important that the couple partakes in meaningful communications and counselling. If one or both of the parties are not interested in resolving the issue, then it is sure to fail.
How do you stay faithful in a sexless marriage?
That is up to you. You need to speak to your spouse about the issue and if necessary, seek professional advice. You would need to go for marriage counselling. The counsellor would speak to both you and your spouse and see what the problems are and try to assist you in resolving it. It is important that the couple partakes in meaningful communications and counselling. If one or both of the parties are not interested in resolving the issue, then it is sure to fail.
Can a marriage survive without intimacy?
It would depend on the married couple. However, intimacy is an important aspect of a marriage. You would need to go for marriage counselling. The counsellor would speak to both you and your spouse and see what the problems are and try to assist you in resolving it. It is important that the couple partakes in meaningful communications and counselling. If one or both of the parties are not interested in resolving the issue, then it is sure to fail.
Is once a month a sexless marriage?
You would need to go for marriage counselling. The counsellor would speak to both you and your spouse and see what the problems are and try to assist you in resolving it. It is important that the couple partakes in meaningful communications and counselling. If one or both of the parties are not interested in resolving the issue, then it is sure to fail.
What age does a man stop being sexually active?
You would need to seek medical advice. It would depend on various factors. The health of the parties and also external factors. For example, work issues, or family trauma and so on.
How do you fix a sexless marriage?
You would need to go for marriage counselling. The counsellor would speak to both you and your spouse and see what the problems are and try to assist you in resolving it. It is important that the couple partakes in meaningful communications and counselling. If one or both of the parties are not interested in resolving the issue, then it is sure to fail.
How can I save my wife’s house?
You have to pay the bond and all expenses.
What if my wife doesn’t want a divorce?
If your spouse does not want a divorce, the court can still grant it if the marriage broke down.
What are my rights in a divorce?
Your right in the divorce would be to obtain any funds you are entitled to base on your matrimonial property regime as well as alimony if you are entitled to it.
How is spousal support calculated in South Africa?
To determine the amount of spousal support, one would need to look at the expenses of the spouse claiming alimony and the income and assets of the party paying the alimony.
How is debt divided in a divorce in South Africa?
If the parties were married to each other in community of property, they both would be responsible for the debt in equal shares. A creditor may, however, proceed against any of the spouses for the Dead and the specific spouse who paid it may claim half the debt from the other spouse.
Who pays attorney fees in divorce in South Africa?
A party to divorce proceedings will have to pay for his or her attorney fees.
What is considered an unfit parent in South Africa?
In short, an unfit parent is a parent who unreasonably neglects the child.
What is considered legally separated in South Africa?
In South Africa, the only form of dissolution of a marriage is done via a divorce. Therefore, for a couple to be legally separated, they need to obtain a decree of divorce from the court.
Can you go to jail if you don’t pay alimony?
Yes, someone can go to jail if he or she refuses to pay alimony in terms of a court order. However due process first has to follow.
Is not paying alimony a crime?
If the divorce court ordered you to pay alimony or personal maintenance to your former spouse and you failed to do so, you are committing a criminal offence.
How do you know if a divorce is final?
A divorce is only final once a judge granted a decree of divorce. This you can ascertain by visiting the divorce court and asking them to provide you with the contents of the divorce file.
How much does the average divorce lawyer cost?
Divorce lawyer fees vary from city to city and based upon their legal experiences. You may find a junior divorce lawyer charging a fee of R 500 per hour and a senior divorce lawyer charging a fee in excess of R 2000 – 00. It all depends on the lawyer and his or her years of experience and the complication of your case.
What happens when a divorce is filed?
From a legal point of view when one party files for a divorce everything that usually applies for the marriage still continues. The only time where they are legal consequences is when a court makes such an order. Therefore, even if one party instituted divorce for the seedings it does not mean a spouse can disregard their matrimonial property regime or get married to someone else.
How do I leave my husband without a divorce?
In South Africa, a divorce is the only manner in which to end a marriage. If you and your spouse are separated even for a very long time you are still married to each other. Therefore, either spouse may marry another person. Moreover, if both parties are no longer interested in remaining married, then, under those circumstances, it is advised that they seek a divorce decree.
How do you bounce back financially after a divorce?
It is important that once a party decided to divorce, he or she needs to think about life post the divorce sooner than later. Therefore, a party should not wait until he or she is divorced before looking for work or trying to financially secure him or her.
Should I file for divorce or let him?
If the marriage has broken down irretrievably and there are no prospects of the restoration of a normal marital relationship, then we advise you to proceed with divorce proceedings as soon as possible.
“(1) The co-holders of parental responsibilities and rights in respect of a child may agree on a parenting plan determining the exercise of their respective responsibilities and rights in respect of the child.”
This situation would apply when the parties want to have a structured parenting plan in place but none of them intends to go to Court on any issue. You could say they are not experiencing difficulties in exercising their responsibilities and rights but wants to have a formalised structure on paper. This optional situation may apply where the parents of the child do not live together and there is no document in place regulating their respective care and contact responsibilities and rights to the child.
Mandatory situation – section 33(2)
The other situation where a parenting plan comes into play is where the parties are experiencing difficulties in exercising their responsibilities and rights. In this case, the Act prescribes to them to first try to agree on a parenting plan before going to Court. Section 33(2) states:
“If the co-holders of parental responsibilities and rights in respect of a child are experiencing difficulties in exercising their responsibilities and rights, those persons, before seeking the intervention of a court, must first seek to agree on a parenting plan determining the exercise of their respective responsibilities and rights in respect of the child.”
Therefore, all holders of parental responsibilities and rights in respect of a child do not need to enter into a parenting plan from the outset as stated. However, should there be problems and one or more of the parties may want to take it to Court, before they do so, they should first try to agree on a parenting plan before approaching the Court. Should the parties fail to agree on a parenting plan after following the prescripts of the Act, the Court may then be approached. As outlined later, once the parenting plan has been agreed upon by the relevant parties, it may either be registered with a Family Advocate or made an Order of Court.
What must the parenting plan deal with according to the Act?
The contents of both optional and mandatory parenting plans can vary, however, according to section 33(3) of the Act:
“A parenting plan may determine any matter in connection with parental responsibilities and rights, including- (a) where and with whom the child is to live; (b) the maintenance of the child; (c) contact between the child and- (i) any of the parties; and (ii) any other person; and (d) the schooling and religious upbringing of the child.”
Furthermore, the Regulations to the Act prescribes child participation bearing in mind the child’s age, maturity, and stage of development. Regulation 11 which deals with the participation of a child in preparation of parenting plans states the following:
(1) Bearing in mind the child’s age, maturity and stage of development, such child must be consulted during the development of a parenting plan, and granted an opportunity to express his or her views, which must be accorded due consideration. (2) When a parenting plan has been agreed the child must, bearing in mind the child’s age, maturity and stage of development, be informed of the contents of the parenting plan by the family advocate, a social worker, social service professional, psychologist, suitably qualified person or the child’s legal representative.
Therefore, before an optional or mandatory parenting plan can be registered with a Family Advocate or made an Order of Court, Regulation 11 must be applied. Section 34 of the Children’s Act deals with the formalities of a parenting plan that need to be adhered to before it can be registered with a Family Advocate or made an Order of Court. It states the following:
“(1) A parenting plan- (a) must be in writing and signed by the parties to the agreement; and (b) subject to subsection (2), may be registered with a family advocate or made an order of court. (2) An application by co-holders contemplated in section 33 (1) for the registration of the parenting plan or for it to be made an order of court must- (a) be in the prescribed format and contain the prescribed particulars; and (b) be accompanied by a copy of the plan. (3) An application by co-holders contemplated in section 33 (2) for the registration of a parenting plan or for it to be made an order of court must- (a) be in the prescribed format and contain the prescribed particulars; and (b) be accompanied by- (i) a copy of the plan; and (ii) a statement by- (aa) a family advocate, social worker or psychologist contemplated in section 33 (5) (a) to the effect that the plan was prepared after consultation with such a family advocate, social worker or psychologist; or (bb) a social worker or other appropriate person contemplated in section 33 (5) (b) to the effect that the plan was prepared after mediation by such social worker or such person. (4) A parenting plan registered with a family advocate may be amended or terminated by the family advocate on application by the co-holders of parental responsibilities and rights who are parties to the plan. (5) A parenting plan that was made an order of court may be amended or terminated only by an order of court on application- (a) by the co-holders of parental responsibilities and rights who are parties to the plan; (b) by the child, acting with leave of the court; or (c) in the child’s interest, by any other person acting with leave of the court.”
Once the parties decide to proceed to try to agree on a parenting plan, they need to have the parenting plan prepared. If section 33(2) applies, they would need to do it with the assistance of the relevant party. However, for both optional and mandatory parenting plans, the best interests of the child principle apply. According to section 33(4) of the Act:
“A parenting plan must comply with the best interests of the child standard as set out in section 7”.
Now we look at the Act and Regulations that come into play in preparing a parenting plan.
Optional parenting Plan – sec 33(1)
With regard to an optional parenting plan (sec. 33(1)), the parties may attend to preparing the parenting plan without the assistance of the Family Advocate, Social Worker or psychologist but they need to make sure it complies with this Act. It is however suggested that they approach a legal practitioner to assist them in this regard. As outlined later, once the parenting plan has been agreed upon and signed, it needs to be attached to Form 8. With regard to mandatory parenting plans, other parties get involved to either assist in preparing the parenting plan or for mediation.
Mandatory parenting plan – section 33(2)
According to section 33 (5) of the Act:
“In preparing a parenting plan as contemplated in subsection (2) the parties must seek- (a) the assistance of a family advocate, social worker or psychologist; or (b) mediation through a social worker or other suitably qualified person.”
Regulation 9 to Act deals with the registration of parenting plans and having them made Orders of Court. It states:
(1) An application for the registration of a parenting plan at the office of the family advocate or for it to be made an order of court must be completed in writing in a form identical to Form 8 and must- (a) be signed by the parties to the parenting plan or, if a person whose signature is required is incapable of furnishing a signature, a thumbprint of that person must be effected and duly attested by a commissioner of oaths; (b) contain the titles, full names, dates of birth, identity numbers or passport numbers (as the case may be), residential, work addresses, and contact details of all co-holders of parental responsibilities and rights named in the parenting plan; and (c) contain the full names, dates of birth, identity numbers or passport numbers (as the case may be), residential addresses and contact details of any child or children named in the parenting plan. (2) Where parental responsibilities and rights are to be exercised in the same manner by the holders of those responsibilities and rights with respect to more than one child in the same family, the application for registration of the parenting plan must be completed for each child. (3) The applicant or applicants for the registration of a parenting plan must file copies of such plan with the family advocate, children’s court or High Court, as the case may be, to enable each co-holder to retain a copy of the registered parenting plan.
Therefore, once the parenting plan complies with the Act and its Regulations, Form 8 needs to be completed for both optional and mandatory parenting plans. However, there is a further instruction in terms of the Regulations regarding mandatory parenting plans. The Regulations to the Act further instructs on what other form needs to be completed should a mandatory parenting plan (sec. 33(2)) be registered with a Family Advocate or made an Order of Court. Regulation 10 states the following:
(1) The co-holders of parental responsibilities and rights as contemplated in section 30 and who are experiencing difficulty in exercising their responsibilities and rights as envisaged in section 33(2) of the Act must seek to agree on a parenting plan on matters referred to in section 33(3) of the Act. (2) The parenting plan contemplated in sub-regulation (1) must be prepared: (a) with the assistance of a family advocate, social worker or psychologist as contemplated in section 33(5)(a) of the Act, and must be completed in writing in a form identical to Form 9; or (b) after mediation by a social worker or other suitably qualified person as contemplated in section 33(5)(b) of the Act, and must be completed in writing in a form identical to Form 10.
It would seem that the relevant form(s) and parenting plan should be left with the Office of the Family Advocate or the Registrar of the High Court to have the parental plan registered or made an Order of Court as the case may be. It does however not seem that Rule 6 of the Uniform Rules of the High Court are applicable. However, it would seem prudent, failing directives to the contrary to make the Application in terms of Rule 6 and attach the relevant documents referred to herein with a supporting affidavit(s) and file same with the Office of the Family Advocate. Once the parenting plan is registered with a Family Advocate or made an Order of Court, the parties would be expected to adhere to the parenting plan. Court proceedings for optional parenting plans Interesting to note is section 34 (6) of the Act where it states:
“Section 29 applies to an application in terms of subsection (2).”
Section 34 subsection (2) refers to the registration of parenting plans with a Family Advocate and for it to be made an Order of Court which was dealt with above. Section 29 of the Act deals with various applications in the High Court, a divorce court in a divorce matter or a Children’s Court as the case may be. Looking at Section 29, the Court is not obliged to make any parenting plan an Order of Court and may only grant an application if it’s in the best interests of the child. Section 29 (5) states the following:
The court may for the purposes of the hearing order that – a report and recommendations of the family advocate, a social worker or other suitably qualified person must be submitted to the court; a matter specified by the court must be investigated by a person designated by the court; a person specified by the court must appear before it to give or produce evidence; or the applicant or any party opposing the application must pay the costs of any such investigation or appearance.
Therefore, the Court would not blindly make a parental plan an Order of Court, but would first need to be convinced that it is in the child’s best interests. It is submitted that before a Court makes a mandatory parental plan (sec. 33(2)) an Order of Court, notwithstanding it being prepared or mediated with the assistance of the relevant person, the Court would still need to be satisfied that the parenting plan is in the minor child’s best interests before making the parenting plan an Order of Court. If the Court is not so satisfied, it may make an order similar to those provided for in section 29(5) referred to above. Contempt of Court The question which may be posed is what is better, having the parenting plan registered with the Family Advocate or made an Order of Court? In my view, it would be better to make it an Order of Court as this would force all parties to comply with it or they would be in contempt of Court. Furthermore, section 35 of the Act states amongst other things that it is a criminal offence to refuse or prevents a co-holder of parental responsibilities of rights to exercise such responsibilities and rights and may be liable on conviction to a fine or to imprisonment for a period of not exceeding one year.
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