Source: HER LAW – Making the law work for you
By:         Adv. M. Nagtegaal, J. Nagtegaal, V. Nagtegaal

South Africa has one of the highest divorce rates in the world. This may be good news to divorce lawyers or people who run removal companies, but it’s challenging if you’re married.

Apart from being one of the most traumatic human experiences there is, it’s also very expensive. It’s always best to get legal advice before you start divorce proceedings, especially if it’s likely to be a messy split.

Divorce and the law
To get a divorce you need proof that your marriage is not working any longer. However, this doesn’t involve presenting photographs of him sneaking in at 3 a.m. on a Sunday morning after he’s had yet another ‘quick drink’ with the boys.

For a court to grant a divorce order, irretrievable breakdown of the marriage must be proved. You must satisfy the court that it’s reached such a stage of disintegration that there’s no reasonable prospect of restoring a normal marriage relationship. The bottom line is that you must be able to show that living together has become intolerable. This includes proof of abuse or cruelty of any kind, alcoholism, drug abuse, malicious desertion, or mental illness.

Grounds for divorce

ABUSE
Abuse includes physical abuse if your spouse assaults you or your children, and financial abuse if he fails to contribute to the common household or does not support you and your children. A court will, furthermore, accept evidence of emotional abuse, for instance if your husband abuses you by making demeaning remarks and criticises you severely.

MENTAL ILLNESS OR UNCONSCIOUSNESS
Mental illness or unconsciousness constitutes valid grounds for divorce. The law does, however, prescribe a minimum period for which these states must persist for them to be valid grounds for divorce. You have to present the testimony of an expert to prove that it’s a persistent state. If your spouse has passed out on the couch after a long night at the bar, it doesn’t count.

HABITUAL CRIMINALITY AND IMPRISONMENT
If your spouse has been declared a habitual criminal and is serving a prison sentence as a result, the court will also accept this as proof of irretrievable breakdown.

ADULTERY
Adultery in itself is not a ground for divorce, but if you can prove that living together has become intolerable as a result of it, it will satisfy the court.

OTHER GROUNDS
The grounds listed above are not the only grounds for divorce. Any circumstances that have led to irretrievable breakdown of the marriage relationship may be presented. A court will normally grant an order for divorce if you can show that you haven’t lived together as spouses for a continuous period of at least one year immediately before you institute action.

Remember that it is not enough merely to state that you and your husband want a divorce. If you don’t provide proof of irretrievable breakdown, and you don’t convince the court that there is no prospect of reconciliation, it will postpone the divorce order. The court may, for instance, order you to go for counselling or to wait for a year before you come back to court; this is to give you time to decide for sure whether saving the marriage is or isn’t possible.

How to get a divorce
When you are the one to institute action for divorce, you are known as the plaintiff. Your spouse will be the defendant.

There are two courts that you can approach to institute action. One is the Divorce Court and the other is the High Court. If you and your spouse don’t want to battle it out in court and you’ve agreed as to who gets what, it may be better for you to go to the Divorce Court, which is much cheaper than the High Court, and in most cases also faster. You don’t even need a lawyer in this court. You can get the clerk of the Divorce Court to help draw up the necessary documents and institute action.

THE DOCUMENTS YOU WILL NEED
You have to draw up the necessary documents to start the action. These include a summons, the Particulars of Claim, and Annexure A (if you have minor children). You can go to any Divorce Court to do this. They have specially trained officers to help you. It’s best to make an appointment if you want to be assisted promptly. If, however, you use a lawyer, he or she will help you to draft the documents.

The summons
In order to start the process, you have to issue a summons for divorce. A divorce summons is known as a ‘combined summons’ because it consists of two parts: the summons and the Particulars of Claim form. These are two separate documents, but they are usually stapled together and function as one – the combined summons. If there are children involved, you must also complete a third document known as Annexure A, and attach it to the summons.

The summons sets out in detail the full names, sex, address, and occupations of you and your spouse. It informs your spouse of your claim, and that your spouse has a right to defend it, and it also outlines the procedure that must be followed to defend the claim.

Particulars of Claim

To get an order for divorce, you must complete the Particulars of Claim.
This document must include the following information:
? you and your husband’s full names, sex, occupations, and address
? your maiden name and previous married name (if you had one)
? the names, sex, and ages of your minor and/or dependant children
? who currently has custody of the children
? a reason as to why you are submitting the papers to this particular court. If you are domiciled (i.e. live) within the court’s area of jurisdiction, you must work through that specific court
? the date and place of your marriage ceremony
? whether you are married in or out of community of property
? a brief explanation as to why you want a divorce. (Remember that a court does not take into consideration who is to blame for the failed marriage. What matters to the court is that the summons must include the symptoms of a marriage that has deteriorated beyond all hope of redemption.)

Annexure A
In divorce proceedings in which minor or dependant children are involved, you must also complete the document known as Annexure A. This sets out certain information regarding the children. It is filled in under oath and must be attached to the summons. An advocate, who will be instructed by your attorney, will usually draw this up, as well as the document known as the Particulars of Claim. (If you want to be represented by a particular advocate, you can request this from your attorney. The advocate will then also represent you in any interim applications, such as a claim for maintenance or custody of your children. The reason for the involvement of an advocate is that not all attorneys may appear in the High Court.)

ID
You will need two certified copies each of both spouses’ identity documents and your marriage certificate. If you’ve burnt your marriage certificate or fed it to the cat, apply to the Department of Home Affairs for a copy.

What you can claim with a divorce order
Along with an order for divorce, you may claim the following:
? custody or access to your minor children. If you make a claim for custody, it means you want the children to live with you, and you want to be the parent who decides on their day-to-day upbringing. If (as the mother) you claim for access to the children, it means you want them to live with your ex (their father), but you want to have reasonable access to them for specified periods.
? an amount of maintenance for you and your minor children (if they live with you)
? division of the property in your joint estate, if you are married in community of property, or division according to the antenuptial agreement if you’re married out of community of property
? the cost of litigation (the legal fees).

In addition, you give the court the discretion to add to your claim as the court may consider necessary.

SERVING THE SUMMONS
After completing the documents, you will receive a case number, which will be indicated on the summons. The original summons and a copy of it will be handed over to the sheriff of the area in which your spouse lives, to be served on that spouse (i.e. it will be delivered to the spouse). The address on the summons must be your spouse’s physical residential or work address. It normally costs you anything from R150 for the sheriff’s services, depending on the location of your spouse’s address. The sheriff will issue a report if the summons has been delivered successfully.

NOTICE OF INTENTION TO DEFEND
If you have approached the Divorce Court, your spouse has approximately one month after the delivery of the summons to contest your claim. If the proceedings have been instituted through the High Court, the spouse has ten days to give notice of intention to defend. If the spouse indicates that he or she does not intend to contest the action (e.g. by not responding), it means that the spouse doesn’t even have to come to court for the matter.

GIVING EVIDENCE IN COURT
The advocate will consult with you and your attorney in his or her chambers before the case is called. He or she will go over the evidence with you, and should explain the questions that you’ll be asked in court and tell you why it’s necessary to ask them. In court, the advocate will ask you questions that are designed to draw out the story of how your marriage has reached a state of irretrievable breakdown. He or she does this to show the court that the requirement of irretrievable breakdown has been met, and that you are entitled to a divorce. Remember that all the court knows about your marriage is what is stated in the Particulars of Claim. It is thus necessary to show by way of oral evidence that you are entitled to a divorce. It’s the court’s job to try to do this as quickly and painlessly as possible.
The position will be different if your spouse contests your claims or, in other words, defends the case. Both of you will have to come to court, along with your witnesses. You will both testify in court and present evidence to support your claims. If the case is defended there are usually more witnesses, lengthier arguments led by the legal representatives, and cross-examination of both sides.

THE DIVORCE SETTLEMENT
The main issues in a divorce settlement are usually division of property, maintenance, and who gets custody of the children. The best way to go about this is to reach a settlement with your spouse when your claims are being contested. This will save you both a lot of time, money, and energy. It’s usually best to reach a compromise regarding property division, maintenance, and custody as this will shorten the court process, which can cost a lot of money. Both of you must sign this settlement, and the court will then make it an order. This will mean that if one of you does not abide by it, you could be found guilty of contempt of court, and could be jailed.

CHILDREN
If there are children involved, the court will always want evidence that the children’s interests are protected and that they will be properly cared for and maintained. It’s the court’s job never to grant a divorce order unless it is satisfied that the arrangements regarding the children are the best possible under the circumstances.

If you’ve approached the High Court, a report from a family advocate will also be required. In this report, he or she will make recommendations to the court regarding the best interests of your minor children.

YOUR CHANGED MARITAL STATUS
After the court’s divorce order, your marital status is effectively changed, and you can revert to your maiden name (if you choose to) without any further registration or cost. Just remember to inform banks, shops where you have accounts, and other businesses that you deal with.

You will have to submit your identity document together with a certified copy of the divorce order to the Department of Home Affairs, so that it can amend its records to reflect your changed marital status. This will then serve as proof of divorce in any further situations where you may need it.