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Chapter 8 - Family Law and Violence against Women

Divorce

Divorce can affect the spouses and their children for the rest of their lives. Before getting a divorce, the husband and wife should try to get help from social welfare agencies or marriage counsellors.

Family and Marriage Society of South Africa (FAMSA).

Divorce in a civic marriage

A divorce legally ends a marriage. Once a divorce is granted, each partner may legally marry someone else.

The Family Court.

There are only two grounds for divorce:

• the 'irretrievable breakdown' of the marriage
  OR
• the mental illness or continuous unconsciousness of one partner

Irretrievable breakdown

‘Irretrievable breakdown’ means the couple can no longer live together as man and wife. Both partners or one partner, must prove to the court that the marriage broke down so badly that there is no reasonable chance of getting back together.

These are examples of the kind of evidence the court will accept as proof of irretrievable breakdown:

• The couple have not lived together like husband and wife for a period of time.
• One partner had sexual intercourse with somebody else and because of this the other partner finds it impossible to continue living together as husband and wife.
• One partner is in prison after being declared an 'habitual criminal'. (This means he or she keeps committing crimes, and because of this was sentenced to 10-15 years in prison.)
• One partner deserted the other.
• One partner abused the other, for example the husband keeps assaulting the wife.
• One partner is an alcoholic or a drug addict.
• The partners no longer love each other - they may be too different, or they married when they were too young.
• One of the partners finds it impossible to live together as husband and wife for any other reason.

Mental illness or unconsciousness

The person wanting the divorce must show the court that the other spouse was admitted to or detained in a mental institution. The person must also show that the spouse has been in the institution for at least two years and that the doctors do not think he or she can be cured.

A person can also get a divorce if the other spouse is permanently unconscious. The spouse must have been unconscious for at least 6 months, and the doctor must see no hope of recover.

Ending an African customary marriage

Customary marriages can only end if there is a court order. The same grounds for divorce that apply for civil marriages now apply to customary marriages. In other words if the court agrees that there has been an 'irretrievable breakdown' of the marriage then it will agree to dissolve the marriage. The spouses are free to settle on any terms they choose, but the court will make an order regarding the custody and guardianship of any minor children and may make an order for maintenance to be paid, taking into account any arrangement that may have been made in terms of customary law.

Customary practices

Lobolo plays an important role in Customary law. Lobolo is a negotiated sum of money that the groom pays to the bride’s family. This payment is done in good faith and is an indication that the groom will be able to provide a good-life for the bride and the bride will be a good wife to the groom.

If the customary marriage ends the husband  may on certain grounds claim the return of part or all his lobolo from the wife’s family. As there are many African traditions in South Africa the grounds for the return of lobolo might vary from tradition to tradition.

Possible grounds on which husband can claim lobolo

• If the wife absconds for no reason
• If the wife cannot have children
• If the wife neglects her household duties and neglects the children

Possible grounds on which a husband cannot claim the return of lobolo

• If the husband publicly rejects his wife for no reason
• If the husband and husbands family accuses the wife of witch craft
• If the husband abuses the wife
• If the husband abandon’s wife

When the parties apply to the court for a divorce and there is a dispute regarding the return of lobolo the parties can ask the court to assist or the parties can approach the Community courts and courts of Chiefs and Headmen. It is likely that a claim for the return of lobolo, without approaching the court for a divorce first, would be subject to challenge on a number of grounds, the most important being that the court would not have jurisdiction to grant an order that is tantamount to dissolving a marriage.

Ending a Muslim or Hindu marriage

If a man and woman were married by an Imam in the Muslim religion, or a priest in the Hindu religion, but they did not also have a civil marriage, the law says they were not lawfully married. So they don't need to use the court if they want to get divorced.

Muslim and Hindu marriages.

The Family Court

The Family Court combines issues of maintenance, Children’s Court matters,  guardianship, parental rights and responsibilities  relating to custody and care, domestic violence

Custody, guardianship and support of children.

Using the Family Court.

All Regional Courts are now family courts.One of the purposes of the Regional Court  is to make it easier and cheaper for people to get a divorce. In the  Regional Court people can choose not to have an attorney or advocate to represent them. The procedures used in the Regional Court are simple and cheap (if no lawyers are used)

See Problem 1: Getting a divorce.

A divorce can be finalised in as little as a month if the parties have signed a settlement agreement at the outset, this is called a Consent Paper. However if there are children, the Family Advocate who is appointed to look specifically at the needs of children in family matters, may become involved to make sure that the arrangements for the children are satisfactory. If there are any disputes about the children or if they have any concerns about the arrangements proposed for the children in the summons, the divorce will take a bit longer to finalise. It will also take longer if it is defended.

Resources for Divorce Court centres

Arrangements made at the time of divorce

When a couple get divorced, they must make a number of arrangements. The woman might have to fight to get a fair deal, especially when it comes to the children of the marriage. The most important arrangements the couple must make are:

• Custody (now called care) of the children
• Access (now called contact) to the children
• maintenance of the children
• maintenance for one partner, usually the wife
• dividing up the family property

Careand maintenance of children are the most important things to arrange. A court will not let a couple get divorced until it is sure that there are satisfactory arrangements for the children.

Care of the children

This means the primary person taking care of the children. The law says that children must always have an adult to look after them. The court always takes into account the best interests of the children, not just the interests or wishes of the parents. So if the parents cannot agree on who should have care of the children, then the court looks to see which parent can best look after the children. The courts will ask the Family Advocate to hold an enquiry to see what would be in the best interests of the children who are under 18.

The Family Advocate

The Family Advocate can look at guardianshipand parenting agreements, which make provision for care and contact and other parental rights and responsibilities. There is a Family Advocate’s office in each division of the High Court. . They assist the parties to come to an agreement that will be in the best interests of the child. If the parents are unable to agree they evaluate the case and make a recommendation  based on the best interest of the child.  The Family Advocate will then produce a  report for the court. The Family advocates recommendations are not binding unless it is approved by the court. The Family Advocate cannot act for either of the parties and they cannot be subpoenaed to court to be a witness for either party.

One of the parents can also ask the Family Advocate to hold an enquiry. For example, if the husband sues for divorce and asks for care of the children but the wife also wants custody, then either of them can complete an 'Annexure B' form which asks the Family Advocate to enquire into the problem. You can get an 'Annexure B' form from the Registrar of the High Court, an attorney, Legal Aid or from the Family Advocate’s office.

The Family Advocate does not charge the parent for holding the enquiry.

Divorces can take a long time. If one of the parties wants care  of the children (for example, if the children are being threatened) while the divorce is happening, the party can make an application for interim care. This means asking the court for full time care of the children  until the divorce is settled. If the party is really worried that the children are suffering or if there is a threat that one of the parties is going to kidnap the children, the other party can make an urgent application for care and that any contact be supervised.

After the divorce, if the parent who doesn’t have  care of the children tries to take the children, the parent with care can ask the court for an interdict. This is an order for the parent to return the children.

In African customary marriages, the court also decides which parent should have custody and guardianship on divorce, based on the best interests of the childrenThe Childrens Act and the Maintenance Act make provision for equal rights and duties of parents of children of religious marriages in terms of which the fact that the marriage is not legally recognised is not an issue.

See Custody, guardianship and support of children.

Contact with the children

The court usually gives the parent who does not have the children in their care, a right to contact (this used to be called the  right of ‘reasonable access’ to the children. The law seeks to maximize the amount of contact children have with both parents, This is where  the parents share  time with the children without impacting on their routine and which is in their interest, which usually means that the children spend at least every second weekend and every second long and short school holidays with the parent who does not have care of the children. However this arrangement may not be appropriate for very young children and depends on the circumstances. If the order does not specify how often and for how long the access should take place, then a parental plan must be drawn-up. A parental plan is an agreement in which it specifies when a parent can have access to the child. The Family Advocate can assist the parents in drawing-up a parental planIf the parent asking for  care does not think the other parent should have unrestricted contact  to the children, he or she can ask the court that  contact be supervised or  restricted. The parent with custody of the children must give good reasons why access should be restricted, for example, that the parent abuses the children or has a serious drinking problem and will not look after the children. That parent’s  access would then have to be supervised by the mother or another adult person. Also, if the one parent has contact rights,  this does not mean that he has the right to see the children in the mother's home.

See Custody, guardianship and support of children.

Maintenance of the children

Although maintenance for the children is paid to the parent who has care of the children, maintenance is a right which the children have, not the parent.. Both parents have a duty to support their children, including children who are illegitimate (according to civil law) such as children of Hindu or Muslim customary marriages. There is no longer a distinction made with children regarded as illegitimate.

When the court gives one of the parents custody, it usually also makes an order for the other parent to pay maintenance.

If a party does not pay maintenance for the children, even though the court has ordered this, then the other party can go to the Maintenance Court to have the order enforced. A maintenance order is an order of the court and so it is a criminal offence to break the order by not paying.

Custody, guardianship and support of children.

Problem 5: When maintenance is not paid.

Maintenance for the wife

Maintenance is often just called 'support'. In a marriage, both partners have a duty to support each other and any children. It is usually the woman who takes care of the home and children more than the man. So the wife often cannot earn as much as the husband. Then the husband has a duty to support the wife and children with money to buy the things they need.

If they get divorced, the wife can claim maintenance for herself from the husband, at least until she finds a decent job.The court considers  a number of factors to establish whether she can get spousal maintenance like the duration of the marriage, whether she worked during the marriage, her age, what type of work she did/does, etc. She must always claim this money at the time of the divorce.

The wife and the husband can agree on what amount he will pay her. If they cannot agree, she should tell the court what amount she wants. If the court agrees that the wife should get maintenance, then the court will order the man to pay a specific amount. The woman can always ask the court to increase the amount later, if her needs change.

If the wife earns more than the husband, he can apply for maintenance from her at the time of the divorce.

Although religious marriages are not legally recognised, the courts have acknowledged the duty to maintain,  a spouse can claim for maintenance from her deceased’s spouse’s estate, claim interim maintenance pending divorce and maintenance during marriage where they were married according to religious rites.

Dividing up the family property

This happens in different ways depending on how the marriage took place.

Marriage, (for details on the different ways people are married)

• If the couple were married in community of property

The joint estate is divided into two equal halves, which includes both assets and liabilities (debts). One half belongs to the husband and the other to the wife. If they cannot agree about how to share the property, the court must decide.

• Non-Africans married before 1 November 1984 out of community of property:

Each partner keeps his or her own property. They also take any property which the ante-nuptial contract says they must get. The court can give the wife a share of the husband’s property if she helped to bring up the children or supported the husband in other ways.

• Africans married before 2 December 1988 out of community without an ante-nuptial contract:

Each partner keeps his or her own property. The court can give the wife a share of the husband’s property if she helped bring up the children or supported the husband in other ways.

• Non-Africans married after 1 November 1984 and Africans married after 2 December 1988 out of community of property with an ante-nuptial contract which keeps in the accrual system:

Each partner keeps his or her own property which he or she brought into the marriage. Any increase during the marriage in the value of either partner's property is shared equally between them.

• Non-Africans married after 1 November 1984 and Africans married after 2 December 1988 out of community of property with an ante-nuptial contract which excludes the accrual system:

Each partner keeps his or her own property. They also take any property which the ante-nuptial contract says they must get. The court has no discretion to order that one spouse shares the property of the other spouse.

Housing

A big problem for women is that they might lose their houses when they divorce. There are some things women can do to make sure that they and their children have a place to stay:

Bought houses

When a couple buy a house it is a good idea to have the house put in both names. If married in community of property, the house has to be registered in both names.

In a divorce situation, it is important that the person who has care  of the children is given a sole right to stay in the house until the children are grown up and that at that stage it be sold and the profits divided between the two parties. Alternatively, the person who is the primary carer of the children  keeps the house instead of sharing in some other assets such as a pension fund interest. If the parent with only contact rights keeps the house, then the other parent (who has care) should ask to be paid out half the value of the house. Alternatively, the house can be sold and profits shared in half.

In the case of Solarie v City of Cape Town, Cape High Court number 26186/09, Ms Solarie challenged the former housing policy of the City of Cape Town to register houses in the name of the husband only when spouses married according to Muslim rites applied for housing as a couple. She argued that this position clearly discriminates against women on the basis of gender and religion. The Court held that the policy was inconsistent with the Constitution, as it unfairly discriminated against women and limited women’s ownership of property and constitutional right to access to land. The policy created additional criteria for women to become a property owner, made her vulnerable to eviction, and did not protect her right to security of tenure. The Judge also found that the agreement which gave the ex-husband the sole right to ownership of the property, was contrary to the values enshrined in the Constitution and therefore could not be enforced.

Rented houses

If you are renting a house and you get divorced, you can ask your landlord to put the house in your name. The landlord will want to make sure that you have enough money to pay the rent, for example, that you have a job. If you are renting from a local council, it is a good idea to get the house put into your name.