Parent24's #dignifieddivorce series is here to help parents navigate the legal and emotional implications of a divorce.
We invited families to share their questions and experiences with us, and where possible we ask an expert for advice.
This divorcee wrote to us with a concern about her divorce, and we spoke to an advocate to clear up some of legalities around the issue.
"My husband pretended he was going to work when in fact he left for Port Elizabeth and divorced me.
We were living in Pietermaritzburg when we got married for the first time. We moved for business reasons and got married again. This was many years ago, but I still feel I was cheated out of my share of the house and our assets.
What can I do?"
Grounds for divorce
While this reader's experience took place in the past, and we recommend she contacts a lawyer to unpack the finer details of her case, we spoke to Advocate Kyle Ball of Di Sienna Attorneys to find out what the law says now, and what steps one can take if you suddenly find yourself divorced without your knowledge.
Advocate Ball explained clearly that in terms of South African divorce law, you do not need to obtain your spouse’s consent to get divorced.
"Should one of the parties satisfy the court that the marriage has broken down irretrievably or that another recognised ground exists for the granting of a divorce, our courts do not have a discretion and must grant a decree of divorce," he says.
However, our law does require that the party seeking the divorce notify the other spouse of their intention to get divorced.
This is done by serving a summons, which will set out the reasons for the breakdown of the marriage, provisions regarding children’s residence and contact, maintenance (spousal and children’s) and the claim for the division of assets.
The summons must be served on the other party by the Sheriff of the High Court.
"Unlike commercial matters, service of any summons affecting a person’s status, such as a divorce, must be served personally on that person and it cannot be affixed to a door or served on any other person found at the premises," Ball explains.
Procedurally and substantively unfair
In the event that the spouse was not aware of the divorce action, and the court grants a decree of divorce, this would be both procedurally and substantively unfair.
"The possible remedies available in such instances are to rescind the order or to vary the order," he says, "However, the court will not re-establish the bonds of marriage, it may only vary or rescind the order to the extent that it deals with maintenance, responsibilities and rights in respect of any children born of the marriage and the patrimonial consequences of the divorce."
In South Africa, spousal maintenance differs from children’s maintenance in that a court will not award spousal maintenance as a right, and it is the duty of the spouse claiming spousal maintenance to prove that he/she requires spousal maintenance, the amount and duration required.
"Very important," Ball adds, "spousal maintenance must be claimed before a decree of divorce is granted – if not, you will lose the right to claim spousal maintenance in the future."
The children's wellbeing
The court will not (or should not) grant a decree of divorce unless it is satisfied that the child/ren born of the marriage will be care for both financially and in respect of their health and well-being.
Ball explains that the court will order one or both parties to maintain the child/ren and the order will remain in place until the child/ren is/are self supporting, marry, die or until the order is varied by a maintenance court.
"To vary a maintenance order, be that to increase or decrease the order, the party would need to prove to the court that there has been a change in circumstances, which is unique to each set of facts," he says.
As an example he describes that, if one day after a decree of divorce is granted, the parent who is obligated to pay maintenance is involved in a motor vehicle accident and as a result will never work again and used all there available funds and assets to pay medical bills, he/she would be entitled to immediately approach the court to vary his/her maintenance obligations.
However, the change in circumstances relied on should not be temporary - such as a bad month or two.
"We have noticed that our courts are reluctant to vary maintenance orders where the party remains employed and/or has assets and relies on the Covid-19 pandemic as his/her change in circumstances," he says.
Do you have a legal question you need help with? Share your questions via email at firstname.lastname@example.org and we may speak to a legal professional on your behalf. Anonymous contributions are welcome.
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