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MARRIAGE AND THE DIVORCE ACT

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The  (other) “Big Day”

Article by our listed attorney
Fawzia Khan 

When you’re about to get married the last thing you want to think about is divorce.

But in today’s society, it pays to be aware of these things so allow me to fill you in on a few facts. In July this year, the Divorce Act 70 of 1979 will have been in force for 31 years.

Prior to 1979 there were 4 grounds for obtaining a divorce: Adultery and desertion were sufficient grounds for divorce under common law whilst the prevailing legislation then in force cited “incurable insanity “and “imprisonment of at least 5 years as a result of habitual criminality” as being the other 2 grounds that one could cite to justify grounds for a divorce. In other words save for insanity, the system in place was based on the “fault system” i.e. divorce was based on the assumption that one of the parties was at fault. Misconduct therefore played a significant role in obtaining the dissolution of a marriage.

No wonder then that divorces in the community were so hugely frowned upon and certainly not rife as it is today. It would undoubtedly have caused much embarrassment and humiliation not only to the spouses but also to the children and family at large. In July 1979, the laws relating to divorce underwent a total overhaul.

The SA Law Commission Law of Divorce found that it was unfair and unrealistic to assume that a marriage had broken down primarily as a result of the conduct of only one of the spouses in the marriage. This approach they found, also severely hampered any prospect of reconciliation, which the parties may otherwise want to consider. Since the coming into effect of the Divorce Act, we now operate on the principal of a “no fault” system. Essentially one only needs to cite irretrievable breakdown as a cause for the breakdown in the marital relationship. Mental insanity or continuous unconsciousness remained as the second ground to a divorce action. Apart from the usual psychological influences or changes which would have some bearing or impact in the life of a person who has divorced, what legal consequences would a person expect to kick in after the divorce? Well for starters there would now a change in the legal status of both spouses.

They can each be free to remarry and would be able conduct their affairs without any restraints, which were imposed by their previous marital regime. In the case of a woman, she can elect to drop her married surname and revert to her maiden surname or any surname she previously held. If she owns immovable property for example in her married surname and has now chosen to use a former surname, there is no need for any formal application to be made to the Registrar of Deeds to record this fact on the title deed. A woman upon divorce will no longer follow the domicile of her former husband.

If at the time of the marriage either party was a minor, (resulting in that person becoming an emancipated minor) the divorce will not result in that person reverting to status of minor, should the marriage be dissolved prior to that person turning 18 years of age. Divorce does not affect the fact that the father will remain joint guardian of a minor child or children, even if he is not the custodian parent of that minor child or children. Unless a court orders otherwise, both parents, consent will still be required in the following instances: • Should their minor child wish to marry; • If a child is to be removed from the Republic by one of the parents or by a person other than a parent of the child; • When applying for a passport of a minor child; • Should there be any alienation or encumbrance of immovable property belonging to the minor child. An important fact often overlooked by many is that a divorce does not automatically revoke any provisions in a will or in any nomination in a life insurance policy if the other former spouse has been appointed or nominated as a beneficiary.

Therefore it’s vital that a recently divorced person gets a new will drawn as soon as practically possible should he or she not want the former spouse to benefit in the estate of that testator.

 Fawzia Khan & Associates are Attorneys Conveyancers & Notaries Public. We were established in 1990 and are based in Mount Edgecombe Durban, Kwa Zulu Natal. Contact us for legal advice on drawing up your Will  or advice on formation and registration of Trusts on your behalf, anywhere is South Africa.

You do not need to make an appointment to consult with us face to face, especially if you reside outside the Durban area. Fawzia can provide you with legal advice quickly and cost effectively via email at fawzia@fawzkhan.coza.

 

Copyright reserved: Fawzia Khan