The Divorce Act , which is the divorce law that came into operation in July 1979 brought about a total reform of the South African Law of divorce procedure and at present the divorce process and its consequences are largely determined by statute. Prior to the coming into operation of the Divorce Act, the common law recognized two grounds for divorce, namely adultery and malicious desertion. Adultery included forms of sexual intercourse such as sodomy and bestiality and desertion court be action or constructive, In addition to these common law grounds two further grounds were added by statute, in curable insanity for a prior of at least seven years and imprisonment for at least five years that resulted from habitual criminality. Except in cases of insanity, divorce was based on the assumption that one of the parties was at fault; in other words the success of plaintiff’s action for divorce depended on proof of the willful commission of a matrimonial offence by the defendant.
In the enquiry that preceded the new divorce law, the South African Law Commission determined both that it was ideologically unsupportable to base the law of divorce on the guilt principle and that it was unrealistic to assume that the fault for marital break-down lay with only one party to the marriage. The application of the guilt principle had resulted in the undesirable situation that by far the majority of divorce actions were dressed up as action based on some form of marital misconduct by the defendant, when all the parties, as well as the court knew that the parties were before the court by common agreement. Furthermore since only the “innocent spouse could sue for divorce, no divorce was possible in situations where the marriage was dead, the guilty party desired a divorce but the innocent spouse refused to co-operate. The commission recognized that in truth the essence of divorce is the candid acceptance on the part of both parties that the marriage has failed. The commission recognized further that the disintegration of marriages resulted from a variety of contributory factors a social problem and was not always or exclusively, due to marital misconduct. Accordingly, the primary aim of a sound law of divorce is to take account of the social reality of marital breakdown, while at the same time providing for the protection of the interest of society in general and for its weaker members in particular. For this reason the commission proposed that where the marital relationship had in fact broken down irretrievably a decree of divorce should be granted. However it was not prepared to support the principle of consensual divorce as this would detract from marriage as a social institution. In the interest of a society which recognized marriage as an institution divorce should be at the discretion of the court and reconciliation should be encouraged; there should be an embargo on the publication of certain particulars relating to the divorce and the interests of the children of the marriage should be recognized and considered when determining whether or not an order for the dissolution of the marriage should be granted.
In the result the Divorce Act stipulates only two grounds for divorce, namely irretrievable breakdown and mental illness or unconsciousness. Both embody the general principle that marriage comes to an end then the consortium that is the core of the marriage relationship no longer exists. With regard to irretrievable break-down as a ground this will generally but not inevitably , be as a result of the conduct of one or both parties to the marriage, while mental illness or unconsciousness will generally arise in circumstances beyond their control. It should be noted that the law pertaining to void and void able marriages is unaffected by the Divorce Act.
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In the past, the criticism levelled against marriages in community of property was mainly at the inferior position it placed the wife in by virtue of the marital power that was deemed to be coupled to the community system. On the other hand, the parties enjoyed economic equality although this advantage was enjoyed only on the dissolution of the marriage. During the marriage the husband, as administrator of the joint estate, had almost unlimited powers over the joint estate. The only consolation for the wife was the knowledge that she was a joint owner of an equal and undivided half share of all the assets and liabilities of the joint estate. The common law matrimonial community was undoubtedly a community of tied-up shares.
A number of couples when they are in love and want to get married rush off to the a marriage offer and don’t sign any sort of ante nuptial agreement. This can lead to a problem later and should be considered carefully. If you would like more information on this subject and any others affecting marriages, please contact us at http://www.just.co.za .
Removing a child from the jurisdiction of the Court and from the access of your ex-spouse is not a good idea as it could involve you in expensive litigation.
The Child Care Act requires that the child’s mother or father, but not of a child’s guardian.
If a child is above the age of sixteen,he must sign the application form for a passport but if the applicant is younger it must be signed by his parents or guardian. If the child is in foster care, the provisions of the Child Care Act must be satisfied.
In the absence of a court order to the contrary, consent an application for a passport must be given by both parents or by the child’s “legal Guardian” but if the applicant is illegitimate only the mother need consent, unless a court “orders otherwise” and if by order of court the child has been placed under sole guardianship of one parent or if a non-parent, only the guardian need consent. The personal particulars of the parents or guardian,must be verified against the population register.
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The Children’s Act of 2005 regulates the balance of power between joint guardians. The first principle is that each guardian may independently and without the consent of any other guardian exercise any right or perform any duty arising from guardianship. However, in the absence of a court order to the contrary, the consent of every guardian is required in respect of the marriage of the minor child, the adoption of the child, the removal of the child from the republic by a parent or by any other person, the application for a passport by or on behalf of any child under eighteen and the alienation or encumbrance of immovable property of the child.
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When the court grants a protection order in Domestic Violence cases, it must make an order authorising the issue of a warrant for the arrest of the offending party and suspending the execution of the warrant subject to the compliance with any order imposed. The warrant remain in force unless the order is set aside. If it appears to a member of the South African Police Service concerned that there are reasonable grounds to suspect that the other spouse may suffer imminent harm as a result of an alleged breach of the protection order by the other spouse, the police must forthwith arrest the offending spouse for being in breach of the protection order. If you need more information about this process please go to our website at Divorce Forms
Barbara phoned her divorce attorney on Saturday morning. Her husband had not come home on time on Saturday and she had gone to the office in her car as she was worried about him. She saw lights on in the office building and as she got near to the window of her husbands office she had no idea of what she was about to witness. Her husband was in an extremely compromising position with a lady who Barbara immediately recognized as his secretary.
“What do I do now” she asked her lawyer, the tears streaming down her face. How do I handle the situation.
Barbara had chosen not to confront her husband in the act and had quietly left the scene and returned home. But the evidence was quite conclusive and she had some important decisions she had to make.
Tomorrow we will look at the Divorce Law in regard to a situation like this and examine the advice which she was given.
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