When a couple gets divorced, they have to make a number of arrangements. The most important arrangements the couple must make are: Custody (now called care) of the children Access (now called contact with) to the children Maintenance of the children Maintenance for one partner, usually the wife Dividing up the family property Care and maintenance of children are the most important things to arrange. A court will not let a couple get divorced until it is sure that there are satisfactory arrangements for the children.

CARE OF THE CHILDREN

This means the primary person taking care of the children. The law says that children must always have an adult to look after them. The court always takes into account the best interests of the children, not just the interests or wishes of the parents. So if the parents cannot agree on who should have care of the children, then the court looks to see which parent can best look after the children. The courts will ask the Family Advocate to hold an enquiry to see what would be in the best interests of the children who are under 18.

THE FAMILY ADVOCATE

The Family Advocate can look at guardianship and parenting agreements, which make provision for care and contact and other parental rights and responsibilities.

There is a Family Advocate’s office in each division of the High Court. They assist the parties to come to an agreement that will be in the best interests of the child. If the parents are unable to agree they evaluate the case and make a recommendation based on the best interest of the child. The Family Advocate will then produce a report for the court. The Family Advocate’s recommendations are not binding unless it is approved by the court. The Family Advocate cannot act for either of the parties and they cannot be subpoenaed to court to be a witness for either party.

Step-by-step guide to using the Family Advocate

1. Either of the parties or the court, can apply to the Family Advocate to hold an inquiry. So, for example, if the husband sues for divorce and asks for care of the children but the wife also wants custody, then either of them can complete an ‘Annexure B’ form which asks the Family Advocate to enquire into the problem. You can get an ‘Annexure B’ form from the Registrar of the High Court, an attorney, Legal Aid or the Family Advocate’s office.
2. The Family Advocate will interview the parties either together or separately where necessary, to find out their personal circumstances and background details.
3. The Family Advocate also interviews the child with the assistance of the Family Counsellor to get the child’s views on the matter. The aim is to protect the child from testifying in a potentially harsh court environment.
4. The Family Advocate helps the parties reach an agreeable solution through mediation.
5. If the parties reach an agreement the Family Advocate will then help them draft a parenting plan or responsibilities and rights agreement which can be registered with the Office of the Family Advocate or made an order of court.
6. If the parties cannot reach an agreement, the Family Advocate will then compile a report for the court and make a recommendation based on the enquiry that was conducted.

The Family Advocate does not charge the parent for holding the enquiry.

Divorces can take a long time. If one of the parties wants care of the children (for example, if the children are being threatened) while the divorce is happening, the party can make an application for interim care. This means asking the court for full time care of the children until the divorce is settled. If the party is really worried that the children are suffering or if there is a threat that one of the parties is going to kidnap the children, the other party can make an urgent application for care and that any contact be supervised.

After the divorce, if the parent who doesn’t have care of the children tries to take the children, the parent with care can ask the court for an interdict. This is an order for the parent to return the children.

In African customary marriages, the court also decides which parent should have custody and guardianship on divorce, based on the best interests of the children. The Children’s Act and the Maintenance Act make provision for equal rights and duties of parents of children of religious marriages in terms of which the fact that the marriage is not legally recognised is not an issue. (See Custody, guardianship and support of children)

CONTACT WITH THE CHILDREN

The court usually gives the parent who does not have the children in their care a right to contact (this used to be called the right of ‘reasonable access’) with the children. The law aims to maximise the amount of contact children have with both parents. This is where the parents share time with the children without impacting their routine and which is in their interest. This usually means that the children spend at least every second weekend and every second long and short school holiday with the parent who does not have care of the children.

However this arrangement may not be appropriate for very young children and depends on the circumstances. If the order does not specify how often and for how long the access should take place, then a parental plan must be drawn up. A parental plan is an agreement that specifies when a parent can have access to the child. The Family Advocate can assist the parents in drawing up a parental plan.

If the parent asking for care does not think the other parent should have unrestricted contact with the children, they can ask the court that contact be supervised or restricted. The parent with custody of the children must give good reasons why access should be restricted, for example, that the parent abuses the children or has a serious drinking problem and will not look after the children. That parent’s access would then have to be supervised by the mother or another adult person.

Also, if one parent has contact rights, this does not mean that he has the right to see the children in the other parent’s home. (See Custody, guardianship and support of children)

MAINTENANCE OF THE CHILDREN

Although maintenance for the children is paid to the parent who has care of the children, maintenance is a right that the children have, not the parent. Both parents have a duty to support their children, including illegitimate children (according to civil law). There is no longer a distinction made with children regarded as illegitimate.

When the court gives one of the parents custody, it usually also makes an order for the other parent to pay maintenance.

If a party does not pay maintenance for the children, even though the court has ordered this, then the other party can go to the Maintenance Court to have the order enforced. A maintenance order is an order of the court and so it is a criminal offence to break the order by not paying. (See Custody, guardianship and support of children; See Maintenance is not paid)

MAINTENANCE FOR THE WIFE

Maintenance is often just called ‘support’. In a marriage, both partners have a duty to support each other and any children. It is usually the woman who takes care of the home and children more than the man. So the wife often cannot earn as much as the husband. Then the husband has a duty to support the wife and children with money to buy the things they need.

If they get divorced, the wife can claim maintenance for herself from the husband, at least until she finds a decent job. The court considers a number of factors to establish whether she can get spousal maintenance, like the duration of the marriage, whether she worked during the marriage, her age, what type of work she did/does, etc. She must always claim this money at the time of the divorce.

The wife and the husband can agree on what amount he will pay her. If they cannot agree, she should tell the court what amount she wants. If the court agrees that the wife should get maintenance, then the court will order the man to pay a specific amount. The woman can always ask the court to increase the amount later if her needs change.

If the wife earns more than the husband, he can apply for maintenance from her at the time of the divorce.

Although religious marriages are not legally recognised, the courts have acknowledged the duty to maintain, a spouse can claim for maintenance from her deceased’s spouse’s estate, claim interim maintenance pending divorce and maintenance during marriage where they were married according to religious rites.

DIVIDING UP THE FAMILY PROPERTY

This happens in different ways depending on how the marriage took place. (See Marriage)

If the couple were married in community of property:

The joint estate is divided into two equal parts, which includes both assets and liabilities (debts). One half belongs to the husband and the other to the wife. If they cannot agree on how to share the property, the court must decide.

Non-Africans married before 1 November 1984 out of community of property:

Each partner keeps their own property. They also take any property that the ante-nuptial contract says they must get. The court can give the wife a share of the husband’s property if she helped financially to bring up the children or supported the husband in other ways.

Africans married before 2 December 1988 out of community without an ante-nuptial contract:

Each partner keeps their own property. The court can give the wife a share of the husband’s property if she helped bring up the children or supported the husband in other ways.

Non-Africans married after 1 November 1984 and Africans married after 2 December 1988 out of community of property with an ante-nuptial contract which KEEPS IN the accrual system:

Each partner keeps their own property which he or she brought into the marriage. Any increase during the marriage in the value of either partner’s property is shared equally between them.

Non-Africans married after 1 November 1984 and Africans married after 2 December 1988 out of community of property with an ante-nuptial contract which EXCLUDES the accrual system:

Each partner keeps their own property. They also take any property that the ante-nuptial contract says they must get. The court has no discretion to order that one spouse shares the property of the other spouse.

HOUSING

A big problem for women is that they might lose their houses when they divorce. There are some things women can do to make sure that they and their children have a place to stay.

BOUGHT HOUSES

When a couple buys a house it is a good idea to have the house put in both names. If married in community of property, the house has to be registered in both names. In a divorce situation, it is important that the person who has care of the children is given a sole right to stay in the house until the children are grown up and that at that stage it be sold and the profits divided between the two parties. Alternatively, the person who is the primary carer of the children keeps the house instead of sharing in some other assets such as a pension fund interest. If the parent with only contact rights keeps the house, then the other parent (who has care) should ask to be paid out half the value of the house. Alternatively, the house can be sold and profits shared in half.

In the case of Solarie v City of Cape Town, Cape High Court number 26186/09, Ms Solarie challenged the former housing policy of the City of Cape Town to register houses in the name of the husband only when spouses married according to Muslim rites applied for housing as a couple. She argued that this position clearly discriminates against women based on gender and religion. The Court held that the policy was inconsistent with the Constitution, as it unfairly discriminated against women and limited women’s ownership of property and constitutional right to access to land. The policy created additional criteria for women to become property owners, made them vulnerable to eviction, and did not protect their right to security of tenure. The Judge also found that the agreement which gave the ex-husband the sole right to ownership of the property was contrary to the values enshrined in the Constitution and therefore could not be enforced.

RENTED HOUSES

If you are renting a house and you get divorced, you can ask your landlord to put the house in your name. The landlord will want to make sure that you have enough money to pay the rent, for example, that you have a job. If you are renting from a local council, it is a good idea to get the house put into your name.