Understanding the Divorce Act in South Africa

Clients that choose Riëtte Oosthuizen Attorneys in divorce proceedings stand to benefit from over ten years’ experience dealing with divorce in South Africa, as well as an intimate knowledge of the Divorce Act. The current act that was enacted in 1979 made considerable changes to the one preceding it, which only allowed for four grounds of divorce and left the female partner at a distinct disadvantage. At Riëtte Oosthuizen Attorneys, we keep abreast of legal amendments that may affect our clients. The preceding Act was very limited in its scope of applicability since the only grounds for divorce were adultery, desertion, insanity or imprisonment for five years or longer. The key assumption was that one of the parties was at fault. In 1979, the divorce law in South Africa underwent drastic changes. This included that introduction of the “no-fault” system, meaning that couples could site irreconcilable differences as grounds for divorce. This was ground-breaking legislation that removed a lot of the stigma attached to divorce. One feature of this new Act is that, post-divorce, each spouse is to be regarded a separate legal entity, allowing either party to remarry without any prohibition and to conduct their affairs as they see fit. Women are no longer required to keep their ex-husbands surname, which consequently means that any property owned and held under her married name can be dealt with without needing an application to the Registrar of Deeds.

The courts recognise the rights of both parents with regards to decisions affecting children that are minors. This means that, even if the father is not the custodian parent, his consent is still required along with that of the mother in certain legal matters, including: The child getting married; Application for a passport; and Removal of the child across national borders.

A common oversight by recently divorced couples is that stipulations in their will or beneficiaries of insurance policies are automatically cancelled as a result of their divorce. This makes it imperative that a new will is drawn up as soon as possible. When parties in a divorce are unable to agree on a settlement through mediation, the courts will have to make all decisions regarding the division of assets and the payment of maintenance. This control of the courts does not end when a divorce is finalised. In the event of either spouse seeking a review and possible amendment, a petition must be filed before the matter is even considered. An example of this is monthly maintenance payments.

Any changes to this agreement must be sufficiently justified to the court. In most cases, changes are sought due to inflation or the needs of the children changing, thus affecting the cost of living. These many permutations of the Divorce Act in South Africa are why people need to consult with professionals before making any major decisions. At Riëtte Oosthuizen Attorneys, our wealth of experience places us in a strong position to guide our clients through this maze of legal obligations and implications.