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 Married couples can dissolve their marriage through divorce. This ends the marriage and the divorced parties can then legally marry again.
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 rites and rituals of the religion.
There are a number of issues that need to be addressed in a divorce, including
- custody of the children
- access to the children
- maintenance
- dividing up property
Before you even begin the legal process of divorce make sure that your marriage has broken down irretrievably and that there are no reasonable prospects of a success to reconstruct your relationship. There are three ways to get a divorce:
The eDivorce Process (DIY):
This is the least expensive process to get divorced and recommended if you have been married for a short time, you don't have children, you don't have many assets, and you can talk to each other and reach agreement on the settlement.
The person wishing to obtain a divorce will have to comply with the procedures of the Court regarding the drafting of a summons and the completion of the relevant particulars for the family advocate. The summons would be issued by the Registrar of the High Court in accordance with the rules of Court. The summons then has to be served on the defendant by the deputy sheriff of the Court and the requisite number of days in terms of the Rule elapsed before the matter is enrolled by notice of set down in accordance with the rules and forms of the particular Court for hearing. It is recommended that the Plaintiff attends court and watches how the matters are conducted as certain basic information is required to be given to the court. The unrepresented matters are usually stood down by the Presiding Judge to the end of the Court Roll.
See an attorney
This is the most costly option. Your attorney will advise you of your rights. He will usually first send a letter to your spouse requiring him/her to call in and discuss the matter either personally or represented by another attorney. An attempt will be made to come to an agreement or to reach a settlement prior to the institution of action. If a settlement cannot be reached, a summons will be issued which will be served on your spouse by the Deputy Sheriff. You may be able to settle the matter at this stage. If not, following numerous court proceedings, the matter will be set down for hearing before a judge who will then decide the matter for you. Divorce is painful and often our emotions get in the way of making sound decisions concerning the children and financial matters.
You may feel guilty about leaving the marriage and feel you must pay heavily for causing the break-up. You may be thinking of agreeing to support your spouse for a longer period than necessary, or you may be tempted to give your spouse most of your property or give up any rights to share. Try to think of the long term consequences of the decisions you take. You can't buy away your guilt. Work on these feelings so that you can make appropriate and rational decisions. You may feel helpless and inadequate, overwhelmed by the complexity of the "legal" proceedings.
You have always left 'money matters' in your spouse's hands and will do so now. In divorce your economic interests are different and may be competitive. Therefore it is important to take control of your own interests and become involved in the money matters. You may also agree to be compliant to please your spouse and avoid conflict, or to get your ex-spouse out of your life as soon as possible. You agree to go to the same attorney who may not be completely objective, or you may agree to settle too quickly without careful thoughts and in consultation with your own attorney.
Your emotions are getting in the way and unless you become aware of this you may be unable to look after your interests or do what is best for your children. A trained counsellor will help you to deal with your emotions. An attorney will resolve other issues and help you to get your legal divorce.
(Source: FAMSA)
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