What process does one follow?
The divorce process will depend on whether the marriage is a civil marriage or a customary marriage. Civil marriages are dissolved according to the rules and procedures set out in the Divorce Act. Marriages in terms of African Customary Law are dissolved according to the civil law but some of the consequences are determined by custom and tradition. Muslim and Hindi marriages are dissolved in terms of the rights and rituals of the religion.
A civil marriage needs to be dissolved by a court. You can only get a divorce if you show the court that there has been an "irretrievable breakdown" of the marriage or that one of the spouses is mentally ill or continuously unconscious. Irretrievable breakdown means that the couple can no longer live together and there is no reasonable chance of them resolving their differences. You can get divorced if your partner has been unconscious for at least six months and doctors don't believe that they will ever recover.
If you want to ask the court to issue a divorce you need to prepare a summons. If you and your partner can reach a settlement agreement before the summons is issued, this will make the process much quicker and easier. If you reach an agreement, you should write it down and sign it. This consent paper should then be attached to the divorce summons. A hearing date will be set. At this hearing, the judge will ask questions to confirm the information in the summons. Once everything is settled, a divorce order will be granted. If you use the Family Court instead of a High Court your divorce may go through more quickly and more cheaply.
Customary marriages are similar to civil marriages in that the court must issue the divorce order and the divorce will only be granted if there are grounds for divorce (that is irretrievable breakdown, mental illness or continuous unconsciousness). The parties can decide the terms of the divorce and then the judge will issue the relevant orders regarding custody and maintenance. If the court has to decide on these matters it will take into account any arrangements that may have been made in terms of customary law. The wife's family may have to return all or part of the lobola to the husband's family, unless the husband publicly rejected his wife for no reason at all.
If a man and woman were married by an imam in the Muslim religion or a priest in the Hindu religion, they are not married in terms of the civil law. They can then divorce without going to court but they must follow the rules of their religion.
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