HOW DO I GET DIVORCED?
A divorce can be a difficult process to endure. The emotional and financial strains are usually exacerbated with the various legal processes one must go through before a divorce action will be finalised by a court. However, educating oneself and receiving ethical legal advice from one’s attorney can help alleviate some of the stresses created by a divorce.
Thus, one can expect the following three key aspects to be dealt with when instituting divorce proceedings. Firstly, the irretrievable breakdown of the marriage serves as a ground for divorce; secondly, the division of assets of the parties once the divorce is finalised; and thirdly, if there are minor children involved, arrangements must be made regarding the maintenance and access to the children.
There are three grounds for divorce in South African law, two of which rarely occur thus making the irretrievable breakdown of the marriage the most common ground used for the dissolution of a marriage. To show that there is an irretrievable breakdown of the marriage, the plaintiff must prove that there is no reasonable prospect of restoring a normal marriage relationship between the parties which can be evidenced by the circumstances as mentioned in section 4 of the Divorce Act 70 of 1979.
The marital regime of the parties determines the division of assets upon dissolution of the marriage – the assets at the time of the divorce. However, the parties have full contractual freedom to either apply the marital regime applicable to their marriage or they can draw up a settlement agreement that will better suit their specific circumstances. A settlement agreement, which is entered into prior to the divorce, sets out how the assets are to be divided and a court granting a decree of divorce may make an order in accordance with this agreement regarding the division of the assets of the parties. If the spouses cannot reach an agreement, the property must be divided according to their marital regime, namely either marriage in community of property or marriage out of community of property with or without the accrual system.
Where there are minor children involved, maintenance and access to the children are important matters to discuss. Arrangements in this regard are drawn up in the form of a parenting plan, with the assistance of an attorney and must also be agreed upon by both parties prior to the divorce. In terms of section 6 of the Divorce Act, a decree of divorce will not be issued until the Court is satisfied that there are appropriate provisions in place for the well-being and in the best interests of the minor or dependent children of the marriage.
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