The Basics of Divorce

Marriage is a legally recognised voluntary union (or unions) between spouses. The legal nature of marriage in terms of its rights and responsibilities requires that its termination be legally recognised. A marriage can be terminated by death, annulment or divorce.

Divorce is a legal action through which a marriage is terminated. As with all legal actions you need to have grounds on which the action is based. In South Africa the recognised Grounds for a Divorce are:

-Irretrievable Breakdown of the Marriage

As the most common ground, a quick explanation is needed.

This is where the marriage has reached such a state of disintegration that there is no reasonable prospect of the restoration to a normal marriage relationship.

Proof of disintegration of the relationship can be found if the couple have not lived as a married couple for a continuous period of twelve months prior to the institution of the action, one of the spouses committed adultery, or the Defendant in terms of a court ruling is declared a habitual criminal and is undergoing imprisonment.

- Mental Illness of the Defendant

-Continuous Unconsciousness of the Defendant

The Process:

Divorce is an Action Procedure; this means that it is instituted by the service of a summons upon the Defendant. The summons must be issued at either the High Court or the Regional Court with jurisdiction over the matter.

The general rule to determine jurisdiction is to "follow the Defendant” meaning that you choose the court with the jurisdiction over the area in which the Defendant is domiciled or ordinarily resident in for at least twelve months prior to the institution of the action.

The Defendant then has 10 Court days to serve upon the Plaintiff and file at Court a Notice of intention to Defend.

The Defendant can raise defences against the Divorce action. Valid defences are:

• To prove that the marriage did not breakdown irretrievably,
• Convince the court that there is a reasonable prospect of restoration of the marriage relationship through counselling, treatment and reflection.
• Divorce is not applicable.

If the marriage is void or voidable then Divorce is not applicable and an application for annulment must be instituted.

If the Defendant fails to file a Notice of Intention to Defend, the Plaintiff can approach the court for a Default Judgement granting the Divorce. If the Noticed of Intention is served and filed, as with all action proceedings, the pleadings stage will continue as follows:

• Plea, served on the Plaintiff by the Defendant
• A Counterclaim, served on the Plaintiff by the Defendant
• A Replication, this is the Plaintiff’s reply to the Defendant’s Plea, served on the Defendant by the Plaintiff

In these pleadings the Defendant will either set out the grounds of his defence against the Divorce or the couple will contest the Division of Assets and terms of their Divorce. The pleadings must accurately set out the facts of the dispute. Once pleadings are closed, the matter enters a preparation for trial process, after which trial and judgement will follow.

If the couple agree to the Divorce and the only aspects in dispute are the terms of the Divorce, then the couple should consider Mediation. If the couple can come to a settlement agreement through Mediation, they can bring an application to court to incorporate the agreement into a Divorce order. This is known as an Unopposed Divorce, which is often the faster and more affordable option.

SOURCES:

Divorce Act 70 of 1979

Jurisdiction of the Regional Courts Amendment Act 31 of 2008

Theophilopoulos, C; et al; Fundamental Principles of Civil Procedure Second Edition (2012)

Van Schslkwyk, L; General Principles of the Family Law Forth Edition (2011)

Family Life Centre, Divorce Mediation (Unknown publication date) accessed at: http://www.familylife.co.za/downloads/FLC%20Divorce%20Mediation.pdf (accessed on: 04/12/2015)