DIVORCE NOTES

Questions for a Client Consult:

 Full names and maiden names

 ID Numbers
 Addresses (domicile to show jurisdiction and service)
 Occupation- address, salary, deductions
 Type of marriage- copy of accrual for OUT COP
 Date, time and place of marriage
 Assets of both parties, monthly expenditure, debts
 Children- before or after marriage, birthdays, sex, age, full names
 Where will children reside, who has PRR and what PRR do they exercise and how (specific)
 Maintenance (spousal and child)
 Reason for breakdown and possibility for mediation
 Is there any forfeiture?
 Pension fund name, number
 Any excluded assets
 MUST fill in Annexure A regarding children care
 Annexure B- request for family advocate investigation

Jurisdiction:

 Section 1(1)- ONLY a HC or regional division of mag court has jurisdiction in divorce actions
 Section 2 of Divorce Act
 If parties or either party is:
 domiciled in the area of jurisdiction of the court on the date the action is instituted
 ordinarily resident in the area of jurisdiction of the court on the date of institution
and have or has been ordinarily resident in the Republic for a period of not less than
one year immediately prior to that date
 Jurisdiction has 2 steps:
1. Type of court- Regional Mag or HC ONLY
2. Place of court- domicile or ordinarily resident
 Jurisdiction required as divorce is ACTION proceedings

Grounds for Divorce:

 Section 3
 A marriage may be dissolved by a court by a decree of divorce and the only grounds are:
 the irretrievable break-down of the marriage
 Section 4
 S4(1)- court may grant a decree of divorce if it is satisfied that the marriage
relationship has reached such a state of disintegration that there is no
reasonable prospect of the restoration of a normal marriage relationship
between them
  S4(2)(a)- parties have not lived together as husband and wife for a
continuous period of at least one year immediately prior to the date
of the institution of the divorce action
 S4(2)(b)- the defendant has committed adultery and that the
plaintiff finds it irreconcilable with a continued marriage relationship
 S4(2)(c)- defendant has in terms of a sentence of a court been
declared an habitual criminal and is undergoing imprisonment
 Section 4(3)- if reasonable prospect of reconciliation the court can postpone
and hear parties attempts at reconciliation
 the mental illness or the continuous unconsciousness, as contemplated in section 5,
of a party to the marriage

The interests of the minor children:

 Section 6
 Section 6(1)- A decree of divorce shall not be granted until the court
 S6(1)(a)- is satisfied that the provisions made or contemplated with regard to the
welfare of any minor or dependent child of the marriage are satisfactory or are the
best that can be effected in the circumstances
 S6(1)(b)- if and enquiry is instituted by the Family Advocate in terms of section 4(1)
(a) or (2)(a) of the Mediation in Certain Divorce Matters Act, 1987, has considered
the report and recommendations referred to in the said section 4(1)
 Section 6(2)- for the purposes of above section the court may cause any investigation which
it may deem necessary, to be carried out and may order any person to appear before it and
may order the parties or anyone of them to pay the costs of the investigation and
appearance
 Section 6(3)- A court granting a decree of divorce may, in regard to the maintenance of a
dependent child of the marriage or the custody or guardianship of, or access to, a minor
child of the marriage, make any order which it may deem fit, if in its opinion it would be in
the interests of such minor child to do so, grant to either parent the sole guardianship

Spousal Maintenance:

 Section 7
 Section 7(1)- A court granting a decree of divorce may in accordance with a written
agreement between the parties make an order with regard to the division of the assets or
the payment of maintenance by the one party to the other.
 Section 7(2)- Spousal Maintenance Factors, court must make an order which the
court finds just in respect of the payment of maintenance by the one party to the
other for any period until the death or remarriage of the party in whose favour the
order is given, whichever event may first occur
 existing or prospective means of each of the parties
 respective earning capacities
 financial needs and obligations
 the age of each of the parties
 the duration of the marriage
  the standard of living of the parties prior to the divorce
 their conduct in so far as it may be relevant to the break-down of the marriage
 any other factor which in the opinion of the court should be taken into account
 If marriage is short and spouse is young then unlikely maintenance will be ordered UNLESS
you gave up job to support the marriage
 Divorce is NO FAULT BUT fault is NB for maintenance and forfeiture

Forfeiture of patrimonial benefits of marriage:

 Section 9(1)
 When a decree of divorce is granted on the ground of the irretrievable break-down of a
marriage the court may make an order that the patrimonial benefits of the marriage be
forfeited by one party in favour of the other
 either wholly or in part
 Factors-
 having regard to the duration of the marriage
 contribution to JE
 the circumstances which gave rise to the break-down thereof
 any substantial misconduct on the part of either of the parties
 court is satisfied that, if the order for forfeiture is not made, the one party will in
relation to the other be unduly benefited.

Divorce Documents:

 Summons
 Issues out of the HC or Regional Court
 Addressed to the sheriff with instructions to inform the defendant that the plaintiff is
issuing divorce
 Tells defendant he has 10 days to issue a notice of intention to defend
 After that the defendant has 20 days to issue a defendants plea
 If defendant fails to deliver intention to defend the matter will proceed unopposed
 Appearance to Defend
 At end addressed to Registrar/Clerk of the court and Plaintiffs Attorneys
 Notice of Bar
 If defendant doesn’t deliver intention to defend in 5 days they are barred and
 Defendants Plea and Counterclaim
 Respond to every allegation in the POC
 Admit, deny, not admit, confess and avoid
 Defendant can make counterclaim (like a POC) which plaintiff must answer

Interim Spousal Maintenance:

 Ito rule 43 of HC the defendant has 10 days to file a reply to the claim or they will be barred
as per the notice of motion
  Affidavit- sets out like divorce POC reason for divorce, maintenance of kids, PRR, reason for
spousal maintenance, set out what was paid and what isn’t, what is required to be paid

PARENTAL RIGHTS AND RESPONSIBILITIES NOTES:

Parental Rights and Responsibilities:

 Section 18
 Section 18(1)- person may have full or partial PRR in respect of a child
 Section 18(2)- what are the PRR
 Section 18(2)(a)- CARE
 Section 18(2)(b)- CONTACT
 Section 18(2)(c)- GUARDIANSHIP
 Section 18(2)(d)- MAINTENANCE

PRR of Biological Mothers:

 Section 19
 Has FULL PRR whether married or unmarried
 Section 19(2)- if mother is unmarried child herself and father doesn’t have guardianship then
the mothers guardians have guardianship of the child

PRR of MARRIED fathers:

 Section 20
 Biological father has FULL PRR of child if:
 Section 20(a)- if he is married to the child’s mother
 Section 20(b) – if he was married to the child’s mother at:
 The time of conception
 The time of birth
 Any time between conception and birth

PRR of UNMARRIED Fathers:

 Section 21
 Section 21(1)- father who is not married and does not have s20 PRR acquires PRR if:
 Section 21(1)(a)- if at the time of the child’s birth he is living with the mother in a
permanent life partnership.
 Section 21(1)(b)- if he, regardless of if he lives with the mother:
 Consents to be identified or successfully applies ito s26 as the childs father
or pays damages ito customary law
 Contributes or has attempted in good faith to contribute toward the
expenses in connection with the maintenance of the child for a reasonable
period
  Contributes or has attempted to contribute in good faith to the childs
upbringing for a reasonable period
 This doesn’t affect the duty of a father to contribute to the maintenance of the child

PRR Agreements:

 Section 22
 Section 22(1)- the mother or holder of PRR may enter into an agreement providing for the
acquisition of PRR with-
 Section 22(1)(a)- the bio father who does not have s20 or 21 PRR
 Section 22(1)(b)- any other person with interest in the care, well being and
development of the child
 Section 22(2)- Holder can only confer PRR they have with person mentioned above in the
agreement
 Section 22(4)- must be registered with family advocate or HC
 Section 22(5)- these agreements can be terminated by family advocate on application of a
person with PRR, the child with leave of the court, in the childs interest

Assignment of contact and care to an interested person by the court:

 Section 23
 Section 23(1)- any person with interest in the care/well-being or development of the child
can apply to the HC, divorce court or Childrens court for an order granting:
 Contact with the child
 Care of the child
 Section 23(2)- before this is done the court must take into account:
 Best interests of the child
 Relationship between the child and the applicant
 Degree of commitment applicant has to the child
 Extent that applicant has contributed to expenses of birth and maintenance of child
 Any other factor

Assignment of Guardianship by a court:

 Section 24
 Section 24(1)- any person with interest in the care, well-being and development of the child
can apply to the HC for an order granting guardianship
 Section 24(2)- facts that a court needs to consider when making an assignment of
guardianship
 Best interests of the child
 The relationship between the applicant and the child
 Any other fact
 Section 24(3)- must supply reasons why the courts current guardian is unsuitable
Termination, restriction and suspension of PRR:

 Section 28
 Section 28(1)- can apply to HC, CC or DC to:
 Suspend or terminate any or all PRR which a specific person holds
 Extending or circumscribing the exercise of the PRR that a person has in respect of a
child
 Application MUST be accompanied by a section 23 application
 Section 28(3)- who can bring a s28 application
 Co-holder of PRR
 Any other person with sufficient interest in the care and wellbeing of the child
 By the child with leave of the court
 In the childs interest brough by any other person with leave of the court
 By the family advocate
 Section 28(4)- the factors the court must take into consideration
 The best interests of the child
 The relationship between the child and the parent whos PRR are being challenged
 The degree of commitment that the person has shown towards the child
 Any other factor

Parenting Plans Contents:

 Section 33
 Coholders of PRR may agree on a parenting plan determining the exercise of their PRR
 If co-holders are having difficulties exercising PRR they must first agree on a parenting plan
before approaching court
 Section 33(3) Contents:
 Where and with whom the child is to love
 Contact between the child and the parties and the child and any other person
 The schooling and religious upbringing
 Parenting Plan must be in childs best interest
 Parties must seek the advice of the fam advocate, social worker or psychologist when
drawing up a PP

Formalities of a PP:

 Section 34
 Written, signed by parties and registered by family advocate or made order of court
 Co-holders must apply in prescribed way and have copy of plan
 Registration in court must be accompanied by a copy of the PP and a statement of the family
advocate after consultation of the family with social worker
 PP can be terminated or amended by the family advocate
Maintenance Court Jurisdiction and Matters:

 Section 3- every mag court in the area of jurisdiction is also a maintenance Court
 Section 4- any DPP who has the power to institute crim proc in a mag court is deemed to be
the maintenance officer
 Section 6- a complaint of failure to maintain when there was a duty or good cause for the
discharge of a maintenance order the maintenance officer must investigate and institute an
enquiry in the jurisdiction of the person to be maintained

Duty of parents to maintain and support their children:

 Section 15- parents have a duty to maintain a child who cannot support themselves which
exists at the time of a maintenance order
 The duty extends to what support the child reasonably requires
 Parents have an obligation jointly incurred to support children given their respective means
despite if child is born out of wedlock

Uniform Rules of Court Rule 43- Interim Maintenance:

 When a spouse seeks support for maintenance pendente lite, contribution to the costs of the
matter, care and contact with the child
 Applicant applying for any relief referred to shall deliver a sworn statement in the nature of a
declaration, setting out the relief claimed and the grounds therefore
 statement and notice shall be signed by the applicant or the applicant’s attorney and shall
give an address for service within 15 kilometres of the office of the registrar
 The application shall be served by the sheriff: Provided that where the respondent is
represented by an attorney, the application may be served on the respondent’s attorney of
record, other than by the sheriff
 The respondent shall within 10 days after receiving the application deliver a sworn reply in
the nature of a plea.
 The reply shall be signed by the respondent or the respondent’s attorney and shall give an
address for service within 15 kilometres of the office of the registrar
 PRESCRIPTION IS 30 years as maintenance is judgment debts (11(a)(2) of Prescription Act)
Customary Marriages Requirements Section 3 RCMA:

Registration Section 4 RCMA:

RCMA Section 6-Equal Status and Section 7- Proprietary Consequences:
Section 8- Dissolution of Customary Marriages:

Section 10- Changes in marriage System: