q&a

  
your divorce
q&a:  

Q: Why use Divorceonline?
A: Testimonials

Q: What are the costs involved to get divorced?
A: R790.00 with divorceonline and approximately R5000.00 - R7000.00 excluding VAT if you do it through an attorney

Q: How long will the DivorceOnline process take to be finalized?
A: If you follow all the steps outlined in the check list promptly, the process takes about 1 month.

Q: What is the process involved in getting divorced?
A: Legal process

Q: How can divorceonline assist me?
A: By generating all the necessary documentation recognized by the High Court of South Africa as well as step by step instructions of what to do.

Q: What is the difference between going through the Central Divorce Court and DivorceOnline?
A: The Central Divorce Court will be able to assist you but you would have to wait for long periods of time before getting any assistance and you would have to go back at least a few times before getting anything finalized. With DivorceOnline we take away the extended waiting periods and generate the documentation for you quickly and more efficiently.

Q: What are the choices or options available for a person that wants to proceed with an uncontested divorce? What would the associated costs be?
A: Yes, you have these three options, make use of a Lawyer or Divorceonline or Do it yourself (Stand in all the q)
An attorney will charge about R5000.00 - R7000.00 plus VAT. Please contact the South African Law Society for advice in this regard.
For simple, uncontested divorce DivorceOnline charges(at the time of writing) R990.00. The advantage of using DivorceOnline, however, is that the forms are autogenerated for you and we provide a detailed list of steps to follow to get divorced.
You can do it yourself at no cost. The Central Divorce Court will be able to assist you but you would have to wait for long periods of time before getting any assistance and you would have to go back at least a few times before getting anything finalized. With DivorceOnline we take away the extended waiting periods and generate the documentation for you quickly and more efficiently.

Q: I'd like to know how your process eliminates court waiting times, It seems that through your process, we still need to go to the court three times, that's three days with waiting hours each time: 1) go to local court (detailed in the check list), 2) go back to local court to get date 3) appear in court on date given. How would this benefit us compared to doing this process alone? ?
A: It is correct that you will have to go to court three times. Whether you use DivorceOnline, an attorney or do it yourself those steps are unavoidable. The advantage of using DivorceOnline, however, is that the forms are autogenerated for you and we provide a detailed list of steps to follow to get divorced.

Q: What are the court times?
A: Divorce courts generally sits in the morning only.

Q: Would a certified marriage certificate would be sufficient to take to court?
A: You need a duplicate original from Home Affairs?

Q: Would is the procedure concerning surnames, does one automatically revert back to ones maiden surname?
A: One can choose to keep you married name or go back to your maiden name. If you want to keep your married name then nothing changes at all?

Q: My spouse (defendant) is always out of Johannesburg during the week and it has become difficult for the sheriff to serve him the divorce papers?
A: One can instruct the sheriff to serve the summons after hours on Friday or Saturday night. Only once service has taken place and you have waited 10 working days can you go to court for a set down date.

Q: If I got married outside of South Africa can I get divorced here?
A: The Jurisdiction of the Divorce Act states as follows:

".A court shall have jurisdiction in a divorce action if the parties are or either of the parties is:

(a) domiciled in the area of jurisdiction of the court on the date on which the action is instituted; or

(b) ordinarily resident in the area of jurisdiction of the court on the said date and have or has been ordinarily resident in the Republic for a period of not less than one year immediately prior to that date."

in other words if you have chosen you domicile address (residential address) within the area of the court which you will be getting the divorce through - you can go ahead with the divorce; or

if you have been a resident for more than a year within the country and you would like to institute action against your spouse, you would be able to do so even if you were not married in South Africa.

Q: Can a South African court divorce South Africans living permanently abroad?
Q I am married to a South African and want to get a divorce. We were married in South Africa about 4 years ago and have been separated for 2½ years. We now both live in New Zealand and have agreed on the terms and conditions of our divorce including the custody of our 4 year old daughter. Does one of us have to be present in South Africa to be able to complete the divorce process or can it be handled remotely by South African lawyer on our behalf? Also what would be the costs for undefended proceedings?

A In terms of South African law, only a High Court can divorce the parties. The court has jurisdiction where the parties or either of the parties is -

a) Domiciled in the area of the court's jurisdiction on the date on which the action is instituted; or

b) Ordinarily resident in the area of jurisdiction of the court on the date on which the action is instituted or has been ordinarily resident in the Republic for a period of not less than one year immediately prior to that date.

As both the parties appear to be permanently resident in New Zealand, a South African court would not have jurisdiction to hear the divorce action and you would have to institute action for divorce out of a New Zealand court. That court would have to apply South African law. If your solicitors require any input in that regard they should feel free to contact us.

Q: Joint v. Sole Custody
Please explain what the rights are of a parent who has joint custody of a child as opposed to one that has sole custody? My husband is going overseas and wants sole custody of our two children. I want to know what my rights would be if he did have sole custody and if I only agreed to joint custody.

Sole custody

The courts are reluctant to award sole custody to a party as this severely curtails the powers of the non-custodian parent. For example, a parent with sole custody could stipulate in his or her will that a third party (rather than the non custodian parent) should be appointed as guardian of the child in the event of the death of that parent.

According to Findlaw, a parent with "sole custody" of a child has exclusive physical and legal custody rights concerning the child. Sole custody arrangements are rare, and are usually limited to situations in which one parent has been deemed unfit or incapable of having any form of responsibility over a child - for example, due to drug addiction or evidence of child abuse. In sole custody situations, the child's other parent (also known as the "non-custodial" parent) has neither physical nor legal custody rights, but may be entitled to periods of visitation with the child (though those visits may be supervised, especially in situations involving domestic violence or child abuse).

Example: Mother and Father have divorced, due to Father's substance abuse and addiction. Mother seeks and is granted sole custody of Child. This means that Mother alone has legal authority to decide key issues related to Child's upbringing, and Child will live exclusively with Mother. Father may be entitled to visitation with Child.

Joint Custody

In child custody situations, "joint custody" usually refers to one of two possible scenarios: joint legal and physical custody, or joint legal custody.

In true "joint custody" arrangements, parents share equal "legal custody" and "physical custody" rights. This means that parents participate equally in making decisions about the child's upbringing and welfare, and split time evenly in having day-to-day care and responsibility for the child - including the parent's right to have the child live with them. True joint custody arrangements are rare, because of their potential to cause both personal difficulties (stress, disruption of child's routine) and practical problems (scheduling, costs of maintaining two permanent living spaces for the child).

Example: Mother and Father are divorced, and agree to a true joint custody arrangement over Child. Mother and Father will work together to reach agreement on all major issues concerning Child's welfare and upbringing (legal custody), and agree to a schedule where Child lives with each parent for one month at a time (physical custody).

Much more common than true joint custody arrangements (where both physical and legal custody are shared) is "joint legal custody," in which both parents share the right to make long-term decisions about the raising of a child and key aspects of the child's welfare, with physical custody awarded to one parent.

Example: Mother and Father are divorced, and decide to share joint legal custody of Child, but also agree that Mother should have primary physical custody of Child. Mother and Father will work together to reach agreement on all major issues concerning Child's welfare and upbringing (legal custody), but Child will live primarily with Mother.

Q: What about Failure to Pay Maintenance
What legal steps can you take if your spouse fails to pay maintenance?

Your spouse has been ordered to pay maintenance in terms of a divorce order or maintenance court order. If he fails to do so, the following are your remedies:

  1. Maintenance enquiry in terms of the Maintenance Act.
    1. You would lodge a complaint with your local maintenance officer that your spouse, although legally liable to maintain you, has failed to do so;
    2. The maintenance officer will then investigate the complaint and may then institute an enquiry in a maintenance court in the area of jurisdiction in which your spouse resides;
    3. If the maintenance officer is satisfied that your complaint is justified, he or she will require your spouse to appear before a magistrate for examination.
    4. After considering all the evidence, the maintenance court will make such order as it deems fit including granting a garnishee order requiring your spouse's employer to deduct the maintenance amount from his salary and paying it over to you.
  2. If your maintenance order was granted by the maintenance court
    1. If your spouse fails to make payment, you can execute against his movable property, attach goods, emoluments (any monies that may be due to him) or any debts that are due to him.
    2. You must approach the maintenance court for the authorization of the issue of a warrant of execution to attach goods, emoluments or debts.
    3. The application for the authorization of a Warrant of Execution to attach goods, emoluments or a debt must be accompanied by a copy of the maintenance or other order in question and a statement under oath or affirmation stating the amount which the person against whom the order was made as though to pay. All these forms are available at the offices of the maintenance court.
  3. If your maintenance order was granted pursuant to a decree of divorce
    1. You can apply to the High Court that issued that decree for the issue of a Warrant of Execution against the property of your spouse. You will need your attorney to assist you in that regard. Obviously, you will not take such a step unless your spouse has movable assets.
    2. Similarly, you could ask your attorney to take steps to obtain a garnishee order against your spouse's salary if he is employed or even to attach the proceeds of an insurance policy or pension scheme: Read more
    Similarly, you could ask your attorney to take steps to obtain a garnishee order against your spouse's salary if he is employed.
  4. Criminal procedure
    1. Subject to the defence that failure to make a payment in terms of a maintenance order is because of lack of means, a person who fails to make a particular payment in accordance with a court or maintenance order is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding 1 year or to imprisonment without the option of a fine;
    2. Your are perfectly entitled to lay a criminal charge against your spouse if he fails to stick to the terms of the decree of divorce or any order made by a maintenance court;
    3. Although this step will likely result in your spouse's being arrested it will not necessarily result in your receiving payment.
    4. On a practical level, however, if your spouse is arrested and he immediately pays all the arrears it is more than likely that the state will drop the charge so this is yet another lever that you have to extract payment.

Q: Access to minor children?
Source: Family Law Service by Schäfer

"Access enables a person to see, and spend time with and enjoy the company of a child of whom he or she does not have custody."

Where parents do not live together, access serves to promote a continuing parental relationship between the non-custodian parent and his or her child, but without displacing the discretion of the custodian parent to control the child's day-to-day upbringing.

It is generally recognised that a child's welfare is usually best promoted through access by the non-custodian parent, especially where there is already a developed parent-child relationship. But no one has an unassailable right of access to a child; the test is always what is in the child's best interests.

However, once an access order is granted, it may be regarded as conferring an enforceable right of access upon the person who is not the child's custodian and with which the latter is bound to comply.

Access after divorce

After divorce and in the absence of any order to the contrary, the non-custodian parent is prima facie entitled to reasonable access. No specific order need to be made to give effect to this entitlement and divorce orders are often silent on the question of access.

Enforcement of access

An access order is binding on both parents until varied or set aside by a court. Save in cases of grave emergency, the proper approach for a parent who is dissatisfied with such an order is to approach the High Court for a variation thereof. Any person who hinders or obstructs a person entitled to access commits the offence of contempt of court. Two avenues are open to an aggrieved party who wishes to institute contempt of court proceedings. First, he or she may lay a complaint with the police, in which event the matter will proceed as a criminal prosecution, should the state decide to prosecute. Second, he or she may apply directly to the High Court for the committal of the custodian parent for contempt. In both cases, it must be proved that the defaulting parent has acted willfully and mala fide.

The fact that a parent is found to be in contempt of court does not mean that the court will automatically enforce the order. The overriding consideration remains the child's best interests.

Rescission or variation of an access order in terms of the Divorce Act

An access order made in terms of the Divorce Act may be rescinded or varied at any time if the court finds that there is sufficient reason therefor.

Divorceonline is an automated system that generate all required documents for an uncontested divorce, We do not provide legal advice. Always consult an attorney in case of doubt..
copyright 2007   terms and conditions   For online support contact: webmaster@divorceonline.co.za