A Fin24 user is desperate to get a divorce after having been married for less than a year. She writes:
I have been married for seven months now and I don't love my partner anymore. I want a divorce, because I am no longer happy. Help.
Grant Wiid of Catto Neethling Wiid Attorneys responds:
Assuming that South African law applies to your marriage, a court will grant a decree of divorce in circumstances where a marriage relationship has irretrievably broken down and where there is no reasonable prospect of the restoration of the marriage relationship.
Usually, where one spouse no longer loves the other spouse - notwithstanding a short duration of the marriage - the order will be granted.
Various factors are being taken into consideration. These include whether one is married in or out of community of property - and then if it is with or without the accrual system - whether you have children or not and what your personal financial circumstances are.
These will determine what claims you and your spouse may have against one another in finalising your divorce proceedings.
If one has children, a court will not grant a decree of divorce until it is satisfied that the best interests of the children - particularly where they are minors, but also in circumstances where they are majors, but dependant on either of both of their parents - have been safe-guarded.
Those interests include their financial wellbeing - usually determined by a maintenance order - as well as how the parents are going to share their parental responsibilities and rights in respect of the children.
The fact that a marriage has only lasted seven months will not necessarily be a bar to a court granting a decree of divorce, but might influence the claims that either spouse may have against the other.
Approaching the court
Anyone wishing to commence divorce proceedings may approach a regional court or a high court, where either they or their spouse has ordinarily lived for a period of one year immediately prior or where either of them is domiciled, for that purpose.
The court officials, however, will not generally assist the public in preparing the relevant documentation - one is expected to arrive at court with your documentation already prepared - but they often assist in guiding one through the process.
Every divorce proceeding will commence with the issuing of a summons - which sets out the plaintiff’s claims against the defendant and will include a request for the court to order a decree of divorce.
The sheriff is then instructed to serve the summons on the defendant personally. Once the summons has been served, a process of exchange of formal documents will progress the matter to a stage where it is ready for trial.
In circumstances where parties are in agreement on all aspects of the termination of their marriage relationship - including matters relating to their assets and liabilities as well as any children born of their marriage - a matter can be finalised relatively simply and cost effectively and the long process of finalising the divorce proceedings can be - in most courts - abated quite substantially.
Parties to divorce proceedings are encouraged to embark on a process of mediation in order to determine the manner in which they wish to settle any aspects of their divorce proceedings that may be contentious.
Although any person wishing to commence divorce proceedings is entitled to commence those proceedings themselves, because of the complex nature of the documentation that may need to be prepared - particularly when divorces are contested - it is advisable for them to seek proper legal advice from an attorney who is well versed in such matters and who can properly traverse the quagmire of laws and rules of court that one might be faced with in a divorce action.
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Disclaimer: The above is based on the information received from you. If our understanding is in any way incorrect, please inform us immediately so that we can make any necessary amendments.
It should be emphasised that due to the limitations of this type of forum, the above is only a general outline of a potentially complex matter. We recommend that you get further advice before taking action.