Divorce issues explained – Access to children
A non custodian parent is entitled to reasonable access in the absence of a court order stating otherwise.
No specific court order is required to affect the right to reasonable access. Divorce courts often fail to make a specific ruling in regard to access. To hinder or obstruct a party in enforcing such a right is an offence and may cause the offending party to be found guilty of contempt of court. The aggrieved party to an access order granted can approach the court for variation.
Access may be limited by the court in instances where the best interest of the children require such intervention.
Divorce issues explained –maintenance
Divorce will place an extra burden on the party in whose favour a custody order was granted. This parent now also has the duty to care for the children. The divorce court will subsequently also make an order in regard to maintenance for such children.
This order can later be enforced or varied by means of filing a complaint at the maintenance court that has jurisdiction in the matter. The divorce court may also grant an order for maintenance in favour of one of the parties to such a divorce.
Such an order can also be enforced or varied at a local maintenance court with jurisdiction in the matter.
The divorce court can also be requested to grant an interim order for maintenance where such a divorce is still pending.
We have an entire section devoted to maintenance – See questions here
Divorce issues explained – Division of property
- The property regime applicable to such a marriage will decide how property will be distributed at time of divorce.
- In the absence of an ante nuptial agreement covering such division, the court will make a ruling in regard to the matter.
- If married in community of property, the joint estate will be divided equally between the parties and debts will also be shared.
- If married out of community of property with accrual, the parties will share in the net accrual amount as previously explained. Some assets like donations and gifts will not be shared.
- If married out of community of property without accrual, no division will take place and the parties will retain all their property acquired before and during the marriage.
Divorce issues explained – Division of property
A pension interest can be split at divorce only if you were divorced on or after 13 September 2007. If the divorce was granted before this date, the non-member spouse has to wait until the member spouse dies, withdraws his or her pension interest or retires in order to claim his or her share of the benefit.
There are a number of conditions that must be met before funds and administrators may split pension assets:
- The divorce order must specifically state that the spouse who is not a member of the fund is entitled to a pension interest, as defined in the Divorce Act.
- The divorce order must specify the non-member spouse’s share of the pension interest as a percentage or rand amount
- The fund that has to deduct the share of the pension interest must be named or identifiable; and
- The fund must be expressly ordered to endorse its records and pay the share of the pension interest.
- The Divorce Act defines the pension interest that can be taken into account in a divorce order or a settlement agreement.
A pension interest excludes a monthly pension from a guaranteed annuity or an investment-linked annuity that was bought with retirement fund savings. It also excludes any withdrawal benefit paid out on resignation or retrenchment or as a lump sum on retirement. If your divorce order is found to be unenforceable against your former spouse’s fund, you will still have a claim to the pension interest to which you are entitled – for this you will need to consult with a divorce lawyer.
Customary marriage divorces
The same grounds for divorce as for the divorce of a civil union, applies here. See also the Recognition of Customary Marriages Act. If the court is satisfied that irretrievable breakdown of a marriage is present, a divorce order can be granted.
The court will also make a ruling in regard to maintenance for the children with regard to any customary law arrangements made. A ruling will also be made regarding custody and guardianship of the minor children.
Lobolo is neither a dowry nor a form of compensation. Lobolo is a form of security placed by the groom in the care of the bride’s father. Should the groom in later years be found to be unworthy of his wife he could forfeit the lobolo. On the other hand, if she turns out to be inadequate, he could be reimbursed with the lobolo