“You can’t go back and change the beginning, but you can start where you are and change the ending.” (C.S. Lewis)
Divorce is traumatic, to the extent that it’s widely considered to be the second most stressful life event (behind only the death of a spouse, and ahead of marital separation and going to jail!).
But if you’ve come to the conclusion that your marriage is so unhappy or toxic that you have no alternative but to put an end to it, you’ll need to know how to go about obtaining a divorce, and what your legal rights are.
The whole process can feel overwhelming, but it needn’t be. Here’s a clear, simplified overview, followed by a Q & A section to address some of the concerns and queries you may be grappling with.
9 common questions answered
Here are some of the most commonly asked questions. Let us know if you have any others!
Do I have grounds for divorce? Our law has since 1979 had a “no fault” concept, so all you must show is that your marriage has broken down irretrievably, with no reasonable possibility of reconciliation. Mental illness or coma are other grounds for divorce but fortunately they rarely apply.
How long does it all take? In an uncontested divorce (depending on how quickly you reach agreement, how busy the courts are, and a myriad of other factors) you should work on between two and three months. A complex contested divorce on the other hand could take years, particularly when fought bitterly through all the appeal courts.
How are our children protected? Parenting plans, care and contact, maintenance and schooling arrangements can and should be settled by agreement if possible. Otherwise, the Family Advocate’s office can help – it’s a free and impartial service, tasked with protecting the welfare of children through investigation, mediation, reporting and making recommendations to the court. If you are still deadlocked and leave it to the court to decide one way or the other, bear in mind that our courts always put your children’s best interests first – no exceptions.
What about maintenance for me and our children? Both of you must contribute to the reasonable financial needs of your children based on your respective financial positions, and child maintenance orders in favour of the parent with primary care (“custody” in the old terminology) are commonly granted. Orders for spousal maintenance (“alimony” in American legalese) are less common and depend on a host of factors. You may also be able to claim interim maintenance pending the divorce.
How much will this cost me? We can give you an idea of the likely cost based on whether or not the divorce is contested and the complexity of the issues involved. A simple, uncontested divorce will always be the least costly option. If the divorce is contested and you can’t afford to pay legal fees, you may be entitled to a contribution to your legal costs from your spouse. Sometimes, when granting a disputed divorce, a court will order one of you to pay the other’s costs, but the general rule is that each of you will pay your own costs. And of course you can always agree between yourselves who pays what costs.
What assets will I get? What you are legally entitled to depends largely on whether you are married in community of property or out of community of property (with or without accrual), and on what your ante-nuptial contract (if you made one) says. The court also has wide discretion to order a redistribution of assets in your favour in appropriate cases – and of course you can agree between the two of you to divide assets any way you want.
What if there’s domestic abuse? We’ll help you get an urgent protection order to keep you and your children safe.
I really don’t want this to go to trial, how can I avoid that? Mediation is often an effective way to help parties reach an agreement on contentious issues. The reality is that most divorce disputes are eventually settled by agreement – if not upfront, then “on the steps of the court”, or perhaps only after battle has begun and everyone can see which way the wind’s blowing.
How does Home Affairs know I’m divorced? We’ll help you send a certified copy of the divorce decree to Home Affairs to update your marital status on the National Population Register.
Talk to us if you’re considering divorce – or even if you just want to understand your options.
Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.
“Grandparents, like heroes, are as necessary to a child’s growth as vitamins.” (Quoted in the judgment below)
One of the greatest tragedies of family fall-outs will always be the effect they have on the children involved. A recent High Court fight over a granny’s attempts to have contact with her two grandchildren in the face of bitter opposition from their father confirms that what really counts is what’s best for the grandchildren.
A tragic death, and a family fight
Two boys, aged 9 and 13, are the innocent subjects of this legal wrangle. They live with their father in Makhanda.
Their mother, a professional nurse serving in the SANDF with the rank of captain, tragically died in a motor accident three years ago.
Their father, currently a High Court advocate, had met their mother while a member of the SANDF’s Special Forces Unit. They were never formally married but the two children were born of their union. He is described as a good father providing his boys with good care and a stable home and family life.
Their grandmother is widowed and a retired nurse and midwife. Her requests to the father for contact with her grandchildren were met with an obstinate refusal to even engage with her. His intense dislike for her – based, he said, on his late partner’s anger issues with her – was reiterated in his stance in the Children’s Court where he made it clear that he refused ever to talk to her.
The grandmother lives in the village of Herschel on a large plot, is in good physical and mental health, and says she is well able to look after for the children while in her care.
The Children’s Court, having received the reports and evidence of social workers (which spoke of a healthy relationship between mother and grandmother in contradiction to the father’s perception), granted access to the grandmother.
The father appealed this order to the High Court. While accepting that the father genuinely believed that he was acting in his children’s best interests, the higher court upheld the contact order, albeit in a more structured form than the original. The grandmother now has access by way of:
Weekly telephonic/multimedia contact
Monthly day visits with her in Makhanda
Mid-year and year-end school holiday visits to her home in Herschel, for a week at a time, initially under the supervision of the Department of Social Development
The decisive consideration
The Children’s Act sets out in detail a wide variety of factors to be considered by a court in deciding any application for access (referred to as “contact” in the Act). But as the Court here pointed out, the decisive consideration is always going to be the best interests of the child.
Every case will be unique, but one highly relevant factor that our courts will have regard to is “the need for the child to remain in the care of the parent, family, and extended family and to maintain the connection with his family, extended family, culture and tradition”.
Let’s close with this particularly apt observation from the Court (emphasis supplied): “Usually, it is in the best interests of a child to maintain a close relationship with his grandparents”.
Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.
“An ounce of prevention is worth a pound of bandages and adhesive tape.” (Groucho Marx)
It’s a perennial topic of dispute in our courts. A couple lives together, sharing the same roof and everything else in perfect happiness and harmony.
Until it all goes south. Then the gloves come off and, particularly if our erstwhile couple end up dragging each other through the courts, everyone takes a beating. Bloodied, battered and bandaged, they’re going to wish they’d implemented Groucho’s “ounce of prevention” in the first place.
We’ll explain how to keep things amicable. But before we do, let’s consider the case of the life partner who failed to persuade a court to give him a cut of his ex-partner’s house.
Trying to prove a “universal partnership”
Bearing in mind that our law recognises no such concept as “common law marriage” (a pervasive and dangerous myth that just won’t go away), many an ex-life partner has fallen back on trying to prove that the couple had formed a “universal partnership”. Depending on the type and form of the partnership they claim existed, that would give them a cut of the assets of their relationship. But it isn’t easy to prove.
The facts in a recent Limpopo High Court fight illustrate this point. A couple in a romantic relationship had lived in the woman’s house with her daughter. Each of them contributed equally towards household expenses. They decided to extend the house, and the man contributed R416k out of his pension payout for this purpose.
When their relationship broke down after five years, the man tried to convince the Court that a universal partnership had been formed between them, and he asked for a liquidator to be appointed to divide the partnership’s assets equally between the partners.
The Court’s thorough analysis of the law relating to universal partnerships (there are actually two types, both with fancy Latin names) will be of major interest to lawyers. But what really matters most to you on a practical level is that:
The onus is on you to prove that a partnership existed, and its terms.
You must prove that you agreed to pool your assets in order to make a profit.
A universal partnership needn’t be agreed to in writing – it can be formed verbally, by consent, or by the conduct of the parties. That requires inferences to be drawn so it’s a recipe for misunderstanding and dispute. Without a written agreement it’s never easy to prove and our case law is littered with failed attempts.
Perhaps the most pertinent factor of all is this comment by the Court (emphasis added): “The mere fact that parties cohabitate does not entitle them to a proportionate share of the other party’s estate.”
In the end, the applicant failed to prove that the relationship had been anything more than cohabitation, so he leaves with nothing (other than, of course, a large legal bill).
An ounce of prevention…
All that litigation and unhappiness could have been prevented had the parties, when they first decided to live together, entered into a cohabitation agreement.
Don’t make the same mistake, and be sure to draw up a document covering, at the very least, the following aspects of your relationship as they apply to you:
When your relationship began or when the agreement takes effect.
List who owns what both before and during cohabitation (furniture, vehicles, investments and so on).
Who is responsible for which debts.
Who owns (or rents) your house, who will pay the bond instalments if any, who will pay for what upkeep, who will pay for any major extensions or repairs, and so on.
Who will pay what in ongoing contributions to shared living expenses.
Will you use joint bank accounts and, if so, how will you manage them?
Will you run your own businesses, a joint business, or no business at all? What will you each contribute, what will you each take out, how will you manage the business/es?
Who will be responsible for the children’s financial support, schooling etc?
If your relationship ends:
How will you terminate it?
Who will get which assets?
Who will be responsible for which debts?
How will you terminate any business relationship you have?
Will either of you be entitled to ongoing spousal maintenance?
What happens to your children, to their financial support, and to your parental duties and rights of contact?
Think of adding a dispute resolution clause to kick in if you can’t agree on anything.
Anything else? Your circumstances are going to be unique to the two of you, so brainstorm for anything else (who gets the pets, for example) that you’d like to record or agree on at this stage.
Herein lies the rub
Setting out an agreement doesn’t mean you’re planning for failure! In fact, you’re increasing your chances of success. Break-ups are a fact of life, and even if you do grow old and wrinkly together, your cohabitation agreement will still come into its own when one of you dies.
On that note, don’t forget to make or update your will (“Last Will and Testament”) at the same time. Both documents are essential, and the two must be compatible with each other, so make a big note to review/update both together.
Bottom line: you and your life partner should have a cohabitation agreement as well as wills. We’ll help you put all that together.
Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.
“I have never let my schooling interfere with my education.” (Mark Twain)
Our Constitution guarantees everyone rights to education, but that doesn’t mean parents can necessarily pick and choose which schools they send their children to. Nor does it mean that they can expect schools to continue educating their children if they don’t pay the agreed fees.
A recent High Court judgment provides a perfect example.
Breaking the camel’s back – 4 years of arrears totalling R407k
A father’s failure to settle a bill of over R407k in unpaid school fees for his daughter’s education at “an elite private school” in Cape Town has led to him being interdicted from enrolling her there for the 2025 school year.
The school’s patience has clearly run out after years of the father’s failure to stick to a payment plan, negotiated four years ago. The Court characterised his actions as a “modus operandi of non-payment and broken undertakings”. His explanation, that affordability is the issue and that he could not pay the outstanding arrears, cut no ice with the Court.
The proverbial “straw that broke the camel’s back”, said the Court, was the father’s “flat-out refusal to sign the most recent restructuring agreement, which had been drafted in a last-ditch effort to record in writing the terms of the most recent agreement between the [school] and the [father] so that his daughter could be enrolled at the school for her next academic year.”
The child’s best interests are always paramount
Our courts are the “upper guardians” of all minor children, and this Court was, as always, careful to consider the daughter’s best interests.
Critically, she is not left without alternative educational opportunities – that would be a breach of her Constitutional rights as well as a violation of the strict warnings from our courts that “schools that provide basic education are under a constitutional duty not to diminish the right to basic education and at all times to act in the best interests of the child.” (Emphasis added.)
In this instance, the school had secured “an alternative good school” for her – a government-subsidised school in the same suburb as her brother’s school. The father’s rejection of this alternative school as being “‘unsuitable’ because [it] is not predominantly white, and this does not align with his daughter’s cultural values” was summarily dismissed by the Court with the terse comment: “The less said about this argument, the better”.
The enrolment contract and the school’s obligations
This case is an important reminder that we are bound by the agreements we make. The father, in signing his daughter’s enrolment contract, was aware that:
The school is an independent school, getting virtually no government funding and relying on school fees and donations to fund its operations and to educate its learners.
Failure to pay fees was a breach of contract which would inevitably lead to the daughter’s exclusion from the school.
Our courts, once again putting the interests of children first, insist that “any decision to suspend or expel a learner during school term must satisfy due process. These include adequate warning prior to suspension or exclusion, provision to make arrangements to settle fees, or the opportunity to make arrangements to enrol a learner at a new school.” (Emphasis added.)
The school in this case had clearly gone “above and beyond” in this regard, and the Court had no hesitation in issuing the interdict with costs payable by the father who must now enrol his daughter in another school – and pay this school its outstanding fees with interest.
Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact us for specific and detailed advice.
“That which we call a rose, by any other name would smell as sweet.” (Shakespeare, in Romeo and Juliet)
Your wedding to-do list will be a long one, and getting all the “boring legal bits” in order before you marry may not seem like a huge priority. But it is. Choices you make now will affect both of you (and your families) forever.
One of those choices is what surname/s you want to adopt in your marriage. We’ll discuss your options below. And although they’re currently available only to women, there’s good news on that front – a recent High Court decision has set the stage for men to be given the same choices as women.
What’s the current position?
In terms of our Births and Deaths Registration Act, as a man you can only change your surname by application to the DHA (the Department of Home Affairs) but as a woman you can automatically:
Take your husband’s surname, or
Revert to or retain your maiden surname or any other prior surname, or
Join your surname with your husband’s as a double-barreled surname.
Those choices are of course a huge improvement on the old default position of wives automatically having to take their husband’s surnames. But there’s still inherent inequality in the law: while women have these choices as of right, a man still has to apply to the DHA for authority to change his surname. Worse still, he must give a “good and sufficient reason” for his application, and the applicable regulations say that in this context your reason “must relate to a change in the marital status of a woman”. These regulations have previously been declared invalid as “ultra vires” (made without authority) but they are very specific in excluding men from the equation.
Two couples challenge the status quo – and win
The groundbreaking High Court decision stems from the resolve of two couples to challenge that remnant of gender inequality:
J… and H… (their full names aren’t used in the judgment to respect their privacy) wanted to use J’s birth surname as it symbolized her connection to her parents who died when she was four. H pledged his unwavering support for her stance and wanted her surname to be their family name in which their children would be raised. The DHA agreed that J could retain her surname but said it was unable to allow H to adopt the same name.
Jess and Andreas (their names were included in the judgment) decided that, because Jess is an only child whose maiden surname is important to her, they would both combine their surnames into a hyphenated surname. They wanted their names to be the same and to reflect their familial unit. It was only when the time came to complete their marriage certificate that they realised only Jess could go the double-barrel route. The DHA again said they couldn’t do the same for Andreas.
In a joint application, the couples asked the High Court to declare that the relevant sections of the Act and regulations are unconstitutional. Our Constitution states, after all, that the right to equality includes full and equal enjoyment of all rights and freedoms, with the State being prohibited from unfairly discriminating directly or indirectly against anyone based on, among other things, gender or marital status. They argued that that “the Act has retained an archaic and patriarchal default position that only women are entitled, as of right, to assume a different surname.”
The Court with little ado issued the order of unconstitutionality, giving parliament two years to remedy this and ordering that in the interim men will have the same rights as women to change their surnames and to resume previous surnames on marriage, divorce or the death of a spouse. It also specifically ordered the DHA to amend these two couples’ surnames as requested.
Now it’s over to the Constitutional Court, then on to parliament
The order of unconstitutionality only comes into force as and when confirmed by the Constitutional Court so for now unfortunately your choices remain limited as above.
Whatever you settle on, before making your final decision you might want to ask us about the legal consequences. Then tell the marriage officer upfront what your choice is so that your marriage certificate, marriage register and National Population Register all reflect your married names correctly.
If you need assistance with this, or any other legal aspect of marriage, please contact us. (But please don’t ask us for help with the flowers!)
Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.
“Divorce is the one human tragedy that reduces everything to cash.” (Rita Mae Brown)
How will the new “Three-Pot Retirement System” (often referred to as a “Two-Pot System”) affect financial arrangements on divorce? Retirement savings can amount to a significant portion of a marriage’s assets, so it’s important to understand the implications of the new system.
First, a quick refresher
Have a look at our graphic below for a neat summary of the three “pots” and what they’re all about.
The “Vested Pot”: This will hold most of your existing (as at 1 September 2024) retirement investments, and the current regulations continue to apply.
The “Savings Pot”: You will be able to withdraw funds from this pot before you retire. Rules apply and you should avoid depleting this pot except in real need.
The “Retirement Pot”: You will (with only a few limited exceptions) only have access to these funds when you reach retirement age (usually 55, depending on the fund).
What happens to these three pots on divorce?
This is of course a brand-new system, and there have been concerns raised about a number of grey areas that may arise in a divorce context. Only time will tell if these will have any meaningful practical effect on divorcing spouses. These exceptions aside, the overriding sentiment seems to be that not much will change other than that your marriage’s “pension interests” will be made up of three distinct pots, rather than just the current one pot.
As such, all three pots will be dealt with as follows:
If you are married in community of property, they will be divided equally between you.
If you are married out of community of property with the accrual system, they will fall into the accrual calculations unless you expressly excluded them in your ante-nuptial contract.
If you are married out of community of property without the accrual system, they might still be taken into account if the court orders an asset redistribution.
And remember, you can always agree between yourselves on a different split upfront in your ante-nuptial contract or on divorce in a settlement agreement.
One new risk to manage
Until now, there has been no “Savings Pot” for a member spouse to potentially deplete as soon as the possibility of divorce raises its ugly head.
While we all know that families should never risk missing their retirement goals by dipping into their long-term savings in any but genuine emergencies, it goes without saying that an acrimonious divorce could quickly change the focus from “let’s save for the future” to “grab it while you can”.
If the worst happens and your marriage hits the skids, be aware that the new legislation states that only when pension funds are given formal written notice, with proof, of divorce proceedings or pending asset divisions, are they legally prohibited from allowing a withdrawal (or granting a loan or guarantee) without your consent as the non-member. That formal prohibition lasts until the divorce is finalised or a court order is issued.
Some have suggested that even before you get to that formal stage, you should alert the pension fund administrators that they should assess any withdrawal requests in light of possible future divorce claims. How that will actually play out in practice remains to be seen, but it is worth noting.
The new system is a lot to get your head around and it’s natural to have questions. Don’t hesitate to ask us for help!
Disclaimer: The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.
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