Divorce in South African law refers to the termination of the marriage union, the annulment of legal duties and responsibilities of marriage and the dissolution of marital ties between married couples. Divorce is not like a cancellation, stating the marriage is null and void. Divorce requires court sanctions in the legal process. The legal proceedings of divorce may also involve the issue of allowances (spousal support), parenting, child support, property distribution and debt distribution.
Prior to the start of the operation of the Divorce Act in South Africa on July 1, 1979, divorce decisions could be granted by the court on either one of two common law grounds, adultery or nefarious rejection, or on any of the two basics introduced in the year 1935 by the Law Divorce Amendment Law: an incurable madness for not less than seven years, or the imprisonment of a defendant's spouse for at least five years after the couple is declared a common criminal. Except in the case of insanity, the basis of divorce is based on a guilty (or mistake) principle: that is, assuming that, in every act of divorce, only one partner is to blame for marital destruction, the other couple is completely innocent. The success of the plaintiff's actions depends on the evidence that the defendant has deliberately committed a marriage violation. The guilty principle also determines the consequences of divorce patrimonialism in that regard, failing in the maintenance agreement between spouses, the order for post-divorce care can only be done for the innocent party against the guilty party, and the latter losing all patrimonial benefits. marriage if the first to file a seizure order against him.
Strong criticism of the shortcomings of the old divorce law led to an investigation by the South African Law Commission, whose report on the matter ultimately resulted in the enactment of the Divorce Act of 1979. Reform of divorce law has been the primary objective of formulating realistic rules for the dissolution of marriage: a rule that allows for dissolving a failed marriage in a way that produces the most unlikely disturbance for the couple and their dependents and that the best protection is in the interests of the little ones. Since it was found that a divorce law based on a guilty principle can not achieve this goal, the old divorce grounds based on this principle are replaced by the irrevocable grounds for marriage details. This is now the main basis of divorce. Incurable madness is retained as the basis of divorce, but the minimum period of mental illness is very short, while the continuous unconsciousness of one partner for a minimum period of six months is added as a new soil. This shift from error to failure is also reflected (albeit to a lesser extent) in the legal provisions governing the patrimonial consequences of divorce.
Indigenous marriage, whether entered before or after the commencement of the Record of the Marriage Act, may (like a common-law marriage) be dissolved only by a court order. This jurisdiction of the vest in the Court of Appeal, a family courts established under the law or the Divorce Court established in section 10 of the 1929 Administrative Amendment Act, but which has exactly the same jurisdiction as any High Court.
Video Divorce in South Africa
Grounds
Under the 1979 Divorce Act, which regulates general-law marriage, divorce decisions can be granted on only one of three reasons:
- irreversible marriage descriptions;
- an incurable mental illness for a period of at least two years; and
- Continual unconscious for at least six months.
The use of the word "possibly" in sections 3, 4 and 5 of the Divorce Act of 1979 raises the question of whether the court has the wisdom to reject the divorce decree even where all the requirements of any of the above reasons of divorce have been met: for example, in cases where "a divorce will result in financial difficulties or other difficulties for one spouse." It has been argued by some authors that it is the legislative intention to maintain such discretionary residues in court. When this question is deemed by the Appeals Division at Schwartz v Schwartz, Corbett JA rejects the interpretation of section 4 (1) in favor of such wisdom, and this is confirmed and adopted in Levy v Levy . There is no court power to delay the divorce process so that parties can try reconciliation, or provisions in the Act that seek to protect the interests of small children or depend on marriage, is an indication that curial discretion is intended. In this case, Van Zyl J is held at Ex Parte Inkley and Inkley that the court has the discretion to not reject the divorce after the reason for its dissolution has been firmly proven, but to delay the dissolution of the marriage until certain conditions are met, depending on case state.
In the case of section 8 (1) Recognition of the Deed of Indigenous Marriage, customary marriage, conducted before or after the start of the Law, "can only be dissolved by the court by divorce decree on an irrevocable basis, marriage details." The court will grant a divorce decision "if satisfied that the marital relationship between the parties to marriage has reached such a state of disintegration so there is no reasonable prospect for the restoration of normal marital relationships." This divorce basis is equal to the irrevocable divorce of marriage in section 4 of the Divorce. Whether the court will interpret the provisions of the Acknowledgment of the Indigenous Marriage Deed on the irreversible details of the divorce in the same way as they have interpreted this basis under Divorce Act remains to be seen.
The law makes no reference to the payment of lobola in relation to the dissolution of marriage. It is therefore assumed that repayment to the husband or his family is not required for the dissolution of marriage. It also follows from the view that, although it is necessary to marry, the agreement for payment lobola is separate from the marriage contract itself.
Section 8 (3) of the Acknowledgment of the Indigenous marriage certificate makes provisions on legal mediation applicable to custom marriage as well, but mediation may also be made in accordance with customary law.
Non-recoverable wedding damage
The following principles apply only to the dissolution of common law marriages in the case of the Divorce Law. In order to obtain a divorce decision on the basis of irrevocable marriage destruction, the plaintiff must fulfill the court that the marriage relationship between the parties has reached a state of disintegration in such a way that there is no reasonable prospect for normal marriage restoration. relationship between them. As Margo J points out in Naidoo v Naidoo , this test is subjective and objective:
- Subjective that different people can react in different ways to the same situation. The plaintiff can be convincingly irrevocable that the marriage is dead, and insists in his determination not to proceed, while the defendant may "wish to break it." Although this is a strong indication of the irrevocable marriage solution, unilateral demand is not the basis of divorce in South African law.
- The test for a description that can not be fixed is therefore objective because the court (and not the parties) should be convinced that the marriage has actually been irreparably damaged. The court must hear evidence of fact or circumstance indicating that irreparable damage has occurred. Because South African law does not in theory allow divorce with the consent of a spouse, the fact that both spouses want a discontinued marriage will not be enough if it is not supported by other evidence.
In Schwartz v Schwartz , the Appeals Division formulates a general approach to take as follows:
In determining whether a marriage has reached such a disintegration state, there is no reasonable prospect of restoring a normal marital relationship between the parties, it is important to pay attention to what has happened in the past, the history of the relationship to the date of the trial, as well as the present attitude of the parties to the marriage relationship as expressed by the evidence in the proceedings.
At Coetzee v Coetzee, the court found that the test had not been met. He argues that the claim that marriage has been damaged incurably can not be cured can not succeed if there is no evidence presented about the change in the marriage patterns of those who show differences in the pattern between the time of the institution of action and the time in the past from which the damage in their marriage relationship can be concluded. A marriage that has always been bleak or unattractive is not broken as "the result of just reservesi mentalis or changes in animus without the factum . can be seen in a pattern that denotes 'ending cohabitation as it exists.' "
The cause of marital damage is immaterial. Although the Act, in section 4 (2), lists three sets of circumstances acceptable by the court as evidence of irreversible damage, it is quite clear from the words of this provision that the court may receive evidence of other facts or circumstances as both show the death of marriage. Furthermore, although there are initial doubts that the three guidelines set out in section 4 (2) in practice can be treated as the sole criterion for determining whether irreversible damage from a marriage has actually taken place, it is clear from the legal case from the beginning of the Divorce Laws that have very little dependency so far have been placed on these guidelines.
Section 4 (2) of the Act provides for acceptable circumstances by the court as evidence of irreversible damages:
- that the parties do not live together as husband and wife for a continuous period of at least one year immediately prior to the date of the institution of divorce action;
- that the defendant has committed adultery and that the plaintiff finds it irreconcilable with a continuing marriage relationship; or
- that the defendant has in the event that the sentence in court has been declared a common criminal and is serving a prison sentence as a result of the sentence.
It is important to remember that the evidence of one of these three factual situations is not necessarily a conclusive proof of marriage details, although such evidence "may prescribe a prima facie case, if not a factual assumption, that marriage is over. "
Non-cohabitation for one year
It is clear that more is needed for the purposes of this guideline than just the geographical separation between couples; there must be a cessation of the marriage consortium. Like the legal basis of evil desertion, non-cohabitation "as husband and wife" (or rather, as a married couple) in the sense that section 4 (a) may include both physical and mental elements: the fact of separation and intention one of the couple to end the marriage relationship. The reason for cohabitation cessation, however, is irrelevant, as is the question of which pair to blame in this regard.
In the usual case the couple stops to "live together as husband and wife" or as a married couple when they build separate households, at least one of them has the intention to end their marriage relationship with such a step. However, a marriage consortium may not exist even if the couple continues to live together under one roof. There may be complete interference in real communication between them, and they may no longer have sexual relations with each other, for example, even if they remain in the same house. On the other hand, the fact that couples are physically separated from each other for a period of time does not necessarily mean that they are not living together as married couples. As long as both partners continue to recognize their marriage "in words and deeds," the marriage consortium between them continues to exist.
Section 4 (2) (a) requires an uninterrupted period of non-cohabitation of at least one year immediately prior to the date of the institution of the act of divorce. Whether the course of this one-year period will be disrupted by the short interval of continued cohabitation, in the efforts of couples in reconciliation, is a matter of contention in South African law.
Adultery by a defendant who the plaintiff claims can not be reconciled with a marriage relationship
It seems that the word "adultery" contains the usual common-law meaning of voluntary sexual intercourse between a married person and someone other than their spouse. These include other forms of sexual intercourse, such as sodomy and animalistic, and (apparently) rape by other female husbands. A married woman who was raped, or who had artificial insemination by a donor without her husband's consent, did not commit adultery.
There must be a causal relationship between adultery of the accused and the fact that the plaintiff feels impossible to continue marriage. Usually, the fact that the plaintiff declares the divorce proceedings will appear to be sufficient evidence of this causal relationship, but there may be doubt in this case if the plaintiff has deceived or forgiven the adultery of the accused.
Detention of defendant after declaration as ordinary criminal
This guideline is clearly based on section 1 (1) (b) of the Law Amendment Law Law was revoked, in the case of the criminal nature of the accused, and resulted in a prison sentence, established as the basis of divorce. However, the minimum prison period is no longer necessary, although it seems that the defendant must actually be imprisoned on the date on which the act of divorce was instituted.
In case of s 4 (3), the court may suspend the divorce proceedings on the basis of irreversible details if it comes to court that there is a reasonable possibility that the parties may be referred through marriage, care or reflection counseling. If unsustainable divorce proceedings are suspended so that parties can try reconciliation, a delaying court may order a new hearing before a different judge.
Mentally incurable diseases
To obtain a divorce on the basis of mental illness of the accused, the plaintiff must fulfill the court that the defendant
- has been accepted as a patient to the institution in the event of an order of acceptance issued under the Mental Health Act, or is being held as a State patient in an institution or elsewhere determined by the Minister of Correctional Services, or held as a detained prisoner mental at an institution; and
- that he is not unconditionally released from the institution or place of detention concerned for a sustained period of at least two years immediately before the institution of divorce proceedings;
- that, based on evidence of at least two psychiatrists, one of which must be appointed by the court, the defendant is mentally ill and there is no reasonable prospect of recovery.
The expressions of "institutions," "mental illness," "State of patient" and "acceptance of orders" have meaning assigned to them in the 1983 Mental Health Act.
Continual unconscious
In the case of section 5 (2), the court will grant a divorce decision on this basis if fulfilled
- that the defendant has been unaware on the grounds of physical impairment for a sustained period of at least six months immediately before the institution of divorce proceedings; and
- that, based on evidence of at least two medical practitioners, one of whom must be a neurologist or neurosurgeon appointed by the court, there is no reasonable prospect that the defendant will regain consciousness.
There are certain specific provisions regarding divorce on the basis of mental illness and continuing unconsciousness, whose purpose is to protect the interests of the accused in such cases. The court may appoint a legal practitioner to represent the defendant and order the plaintiff to pay the cost of the representation. It may also order the security of the plaintiff in respect of patrimonial benefits in which the defendant may be entitled by reason of the dissolution of the marriage. Finally, in the case of divorce decisions granted on either of these two reasons, there is no command to obtain the marriage possible patrimonial benefits against the defendant.
Maps Divorce in South Africa
Relationship between ss 4 and 5
The relationship between sections 4 and 5 of the Divorce Act has been the subject of much debate. Two questions arise in this case:
- whether the court can grant a divorce in section 4 (on the basis of irreversible destruction) in which the defendant is mentally or unconscious, but where the requirements of section 5 have not been met; and
- is there a reason for divorce in which the defendant suffers from a physical or mental illness or an inability not covered by section 5, but which causes the marriage to be irreversible.
With regard to the first question, it is clear from the legal case that the answer is in the affirmative. Provided the plaintiff proves court satisfaction that the marriage has failed to be solved, the fact that the cause of the damage is a mental illness or continuous unconsciousness of the defendant does not prevent the plaintiff from basing his actions on section 4 rather than part 5. As has been pointed out by Van der Vyver and Joubert, specifically for the protection of a mentally ill or unconscious defendant will not operate under such circumstances, the court shall protect the interests of the defendant in such a case, and shall, if necessary, demand the appointment of the curator ad litem for him.
In the case of Smit v Smit, the full bench answers the second question posed above in the affirmative, rejecting the view that the legislature is meant to distinguish between the case of "flawless prevention of marital continuity" in section 4, on the one hand, and the case of "supervening impossibility" in section 5, on the other. Marriage can be dissolved on the basis of irreversible destruction even if the damage is caused by circumstances that are beyond the control of one partner.
Consequences
Personal
The personal consequences of divorce under customary law are in many ways similar to those under general law. Therefore, the principles set out below apply to customary marriages and common-law marriages, unless otherwise stated. There is no difference in this between customary marriages made before the Recognition of the Marriage Act, and which is done after the Act.
The divorce decree ends, with a prospective effect, all personal consequences of marriage, with the exception of the privilege of proof in the case of communication exchanged between ex-spouses stante matrimonio. As in the case of the dissolution of marriage due to death, the wife may continue to use the surname of her husband or, without requiring the consent of the Director General of Domestic Affairs, continuing the last name he uttered in the previous time.
Both parties are free to marry others. However, if the parties in the marriage of the common law decide to remarry, a new wedding ceremony should take place. The old ban on marriage between a divorced spouse and his lover is no longer valid.
Chuma Himonga said that the repayment of the relevant divorce lobola paid in connection with adat marriage would not affect the capacity of a divorced wife to remarry. This follows, he argues, from the view that the lobola contract is separated from the marriage contract.
Patrimonial
The common-law principles governing the patrimonial consequences of divorce discussed below also apply, mutatis mutandis , to all customary marriages. But there are three exceptions.
See also
- Marriage in South Africa
- Polygamy in South Africa
- same-sex marriage in South Africa
- Civil partnership in South Africa
- Religion in South Africa
- South African family law
- Text on Wikisource:
- Deed of Marriage, 1961
- Recognition of the Marriage Deed, 1998
- Civil Law, 2006
References
- Himonga, C. "Marriage." In F. du Bois (ed.). Wille Principles on South African Law . 9th Edition, 4th Impression. Million, 2012.
- What Most People Do not Know About Divorce Mediation Latasha Curtis, August 14, 2014
Note
Source of the article : Wikipedia
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