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The Divorce Process

Divorce actions in South Africa are being regulated by the Divorce Act, Act 70 of 1979.

Should the parties agree or should a party to a marriage conclude that the marriage relationship between them has irretrievably broken    down as contemplated in terms of Section 4(1) of the Divorce Act, Act No. 70 of 1979, as amended, and that there is no reasonable prospect for the restoration of a normal marriage relationship between, the parties or a party may proceed with a divorce action in either a Regional Court or High Court having jurisdiction. The Court`s jurisdiction will depend on where the parties are residing.

The reasons for seeking a Final Decree of Divorce will depend on the circumstances and the general reasons will normally be as follows:

  • There is no love and affection between the parties;
  • The parties are unable to communicate on a meaningful level and share no common interests;
  • The parties have already separated, and the parties are not living together as husband and wife;
  • The Defendant physically, emotionally, psychologically and verbally abused the Plaintiff throughout the marriage;
  • There is no trust between the parties.

It is always advisable for the parties to try and reach an amicable settlement, prior to the issuing of the Divorce Summons, which terms will be incorporated into a Settlement Agreement which agreement will be incorporated into the Final Decree of Divorce.

Should there be minor children born of the marriage the parties will in normal circumstances retain full co-parental rights and responsibilities in terms of section 18 (2)(a), (b), (c) and (d) of the Children`s Act (Act 38 of 2005), in respect of the minor children and the aspect to be settled upon will be the children`s primary place of residence and the maintenance payable pertaining the minor children.

In normal circumstances both parties shall continue to act as Guardians of the minor children as provided for in sections 18(2)(c), 18(3), 18(4), and 18(5) of the Children’s Act, 38 of 2005.

The parties` rights and obligations pertaining the minor children must be well defined in the Settlement Agreement and once the Settlement Agreement was signed the agreement have to be submitted to the Family Advocate for an endorsement and the Divorce Court will not grant a Final Decree of Divorce without the Family Advocate`s endorsement.

The manner in which the parties` estate/s will be divided will depend on the parties’ marital regime which may be either in community of property or out of community of property, with or without the accrual system.

It is crucial to obtain the services of an Attorney specialising in Divorce Actions to ensure the legal process continues without unnecessary delays and headaches.

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