Getting Divorced | Western Cape Government

Getting Divorced

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A married couple can end their marriage through divorce and there are a number of issues that need to be addressed in a divorce, including: 

Custody of the children

Blurred out mommy in car drops daughter at her daddy's house. Daughter running to daddy with his arms wide open and smiling.

Before the court can allow the divorce to take place, the parents or court will have to decide who takes care of the children. This decision should be in the best interest of the children, and can be investigated by the Family Advocate.

If the divorce is taking a long time, an interim custody order can be issued setting out who will look after the children while the divorce is being finalised.

In African, Hindu and Muslim customary marriages, the wife usually takes custody of the children. According to African customary law, the father usually remains the children's natural guardian. The children of Hindu and Muslim marriages are regarded as illegitimate, so the mother is also the natural guardian.

In all cases, both parents have a duty to support the children.

Access to the children

An agreement about when, where and how the parent will have access to the children will need to be made.

If it is not in the best interests of the children for the other parent to have access rights, then the court can restrict access.

Maintenance

The court will issue a maintenance order requiring maintenance to be paid for the children.

If there are problems with maintenance after the divorce has gone through, these can be taken to the Maintenance officer at the Magistrate's Court.

Whether one party will have to pay maintenance or support to the other party depends on the circumstances. If the parties cannot agree on how much should be paid then the court will decide.

Because Hindu or Muslim marriages are not fully recognised as legal marriages, the wife has no legal status to claim support after divorce.

Dividing property 

Man and woman sitting at a table signing divorce agreement and dividing property.

How the family property will be divided depends on what property regime the couple adopted when they got married. This will usually be covered in the antenuptial agreement if there is one or, if there is no pre-marital contract, then it is determined by law.

The default legal position is that civil marriages are in community of property with accrual. This means that everything that you own is shared, including property and debts. Accrual means that everything that you earn or buy after you have married also becomes part of the joint estate.

If you get divorced, the shared property is divided equally between you. Any debts are also shared.

If the marriage is out of community of property without accrual, then each person keeps their own property from before the marriage and keeps whatever they earn or acquire during the marriage. Some things, like inheritances or gifts remain separate.

The default property regime has changed for different people at different times. The laws that were in place when you got married will determine what property regime applies to your marriage.

Provided by:
Government Body: (The Government of South Africa)
The content on this page was last updated on 21 December 2018