Can I get divorced in a Magistrate's Court?
Yes, you can. Until a recent amendment to the law, you could only get a divorce in the High Court. However, now you can choose instead to get a divorce in the Regional Magistrates Court. It is generally quicker and may cost less.
Is mediation an effective way to negotiate a divorce?
Certainly. Mediation is an excellent way of doing a divorce. A mediator is a neutral third party who helps the parties reach an agreement without the intervention of attorneys. However, mediation tends not to work with high conflict parties. The parties need to be able to speak to each other.
Can I get a divorce without using an attorney?
Yes, you can. There is no legal requirement to use an attorney for a divorce. However, it is generally advisable to use an attorney, or a mediator, to get your divorce. The parties to a divorce are often at loggerheads and therefore cannot reach an agreement. It is then better to have the intervention of attorneys or a mediator.
Is an online divorce valid, or is it a scam?
No, it is not a scam. If the parties agree on all aspects of the divorce, they can process the divorce online. However, one of the parties will usually have to appear in court to conclude the proceedings.
What is an uncontested divorce?
An uncontested divorce is where the parties agree on all aspects of the divorce: maintenance for the minor children or a party; custody and visitation in respect of the minor children; division of the assets. The parties then sign a written agreement, and one of them goes to court to finalize the divorce.
What is the accrual system?
The accrual system is one of three matrimonial property regimes available to parties getting married. They are: marriage in community of property; marriage out of community of property with accrual; marriage out of community without accrual. In the accrual system, the parties are married out of community as long as they remain married. This means they have their separate estates. However, if they get divorced, then the party whose estate has increased the most during the marriage, will have to transfer a certain amount of his assets to the other party.
What is my position if I did not sign an Antenuptial Contract? Is my marriage invalid?
Your marriage is perfectly valid without an Antenuptial Contract. However, you will automatically be married in community of property, meaning that you and your spouse have one joint estate.
I am married in community of property. How will the court divide the estate?
If you are married in community of property, then you share an undivided joint estate with your spouse. When you get divorced, and you have no agreement regarding the assets, the court will simply order a division of the joint estate. If you cannot agree on how to divide the assets of the estate, you will have to appoint a liquidator, who will sell the assets and distribute the proceeds between the parties.
What is the Family Advocate?
The Family Advocate is a department within the Ministry of Justice. The Family Advocate looks after the interests of minor children in divorce proceedings. Where there is a dispute regarding custody of the minor children, the Family Advocate will investigate and provide a report for the court. Every divorce where there are minor children involved must be signed off by the Family Advocate.
How often will I see my children if my ex-spouse has custody?
Each case is different. However, the standard arrangement is for the non-custodial spouse to see the minor children every second weekend, one day during the week, and half of all holiday time.
Will I have to pay maintenance to my ex-spouse?
If your ex-spouse does not have the means to support herself, you may have to pay maintenance for her. It depends on various factors, including her age, the length of the marriage, her assets and prospects of earning a living.
What is a Rule 43 Application?
A rule 43 Application is an application for "interim maintenance". Typically, maintenance is awarded at the end of the divorce proceedings. However, it may be that during the proceedings, a party cannot support his/herself and the children. In this case, a party can bring a Rule 43 Application for interim maintenance. The application is made by way of affidavits by each party. These affidavits are placed before a judge and argued by advocates. The process takes about six weeks.
What is the Maintenance Court?
The Maintenance Court is a specialized division of the Magistrates Court, created to deal with maintenance matters only. Though the High Court can also deal with maintenance matters as part of a divorce, it is more expensive and takes longer than the Maintenance Court. Furthermore, the procedure in the Maintenance Court is more straightforward than the High Court. In fact, one does not need an attorney in the Maintenance Court, unless it is a particularly complicated case.
How does the court determine how much child maintenance I must pay?
The court looks at three things to determine the amount of child maintenance you must pay. Firstly, the court looks at the net income of each parent. Secondly, the court looks at the reasonable needs of the child, including accommodation, school fees, medical aid, food, entertainment etc. Here the court considers the lifestyle of the family before the divorce. By comparing the income of the spouses, the court determines the percentage of the child's needs each parent must contribute.
I have no job, no income, and no assets. Can the court still order me to pay maintenance?
No. The court will not order you to pay maintenance in any amount if you have no income or assets.
Can I refuse to pay maintenance if my spouse will not let me see my children?
You cannot refuse to pay maintenance just because your ex-spouse will not let you see your children. This is a popular myth. Maintenance and visitation are two sperate legal issues. If you have been ordered to pay maintenance, you must do so. If you have been instructed to give your spouse access to the minor children, you are legally obliged to do so. You cannot withhold maintenance because your ex-spouse does not provide you with access to the children. You must pay maintenance, and she must give you access to the children. The one has nothing to do with the other. And if you do refuse to pay maintenance, you are in contempt of court and liable to a fine and imprisonment.
What can I do if my ex-spouse fails to pay maintenance for the children?
If your ex-spouse refuses to pay maintenance, you must report him to the Maintenance Officer at the Maintenance Court. The court will order one or more of the following:
Emoluments attachment order:
The court can order your ex-spouse's employer to deduct a monthly amount from his salary, which will be used to pay maintenance.
Execution (confiscation) of your ex-spouses' property:
The court can order the Sheriff of the Court to confiscate and sell your ex-spouse's property, both moveable and immoveable. The proceeds of the sale will be used to pay maintenance for the child/children.
Criminal Prosecution:
Finally, the court may fine and/or imprison your ex-spouse for his failure to pay maintenance.
Can I stop paying maintenance for my children once they are over eighteen?
Not necessarily. Parents are legally required to pay maintenance for their children until they are self-sufficient. For instance, if your child goes to university after finishing school, and has no job or savings, you will have to support him. You will have to continue supporting him until he ends university and starts earning a living.
Are grandparents liable to pay maintenance for their grandchildren?
They can be. Legally, if the children's parents are unable to support them, then, if they have the means, the grandparents can be ordered to support them.
I had an affair while I was still with my spouse. Will this weigh against me in the divorce?
In the past, this would have weighed against you, as you would be regarded as the "guilty party". Today, however, we have what is called a "no-fault" divorce regime. That is, the court does not consider the parties’ behaviour when considering the division of the assets (except in exceptional circumstances).
I heard I need to pay for my spouse’s legal expenses. Is that true?
Yes, you may have to pay at least a portion of your spouse's legal fees. If a spouse has no means with which to contest the divorce, then there is a legal obligation on the other spouse to contribute to his/her legal costs.
Can I sue a third party who had an affair with my spouse?
Theoretically, you can sue the third party who committed adultery with your spouse, for what is called "alienation of affection". However, it is regarded as a legal action which is out of date, and it is doubtful whether a court would be prepared to hear the claim.
How does the court decide who gets custody of the minor children?
The court decides what is in the best interests of the minor children. A court will consider factors such as the child's happiness, security, mental health and emotional development. Whichever parent is more likely to be able to provide the minor children with these things, will be awarded custody.
