Divorce Where do I start?

Drunk nights, emotional abuse, physical abuse and adultery are only some of the factors that will push any spouse over the edge when assessing the future with their spouse. The divorce process can be a very scary challenge. This is why you need the right divorce attorney on your side to make sure justice prevails.

The first question that clients ask or confront us as attorneys specialising in family law with is: Where do I start and do I have grounds to divorce my spouse?

Over the next couple of weeks HFG Attorneys – with our focus on family law and the role of the divorce attorney – will publish more information blogs on our website to assist you in this process.

The first step is to contact your divorce attorney and make an appointment for your first consultation. During this consultation, you will have to provide your attorney with as much information about your situation as possible to allow them to advise on you on the road ahead.

Remember: Your divorce attorney is your best friend. Tell them everything about your marriage and life, even if you think it is worthless. During the first consultation, your divorce attorney will also explain the whole divorce process to you to put you at ease. It is important to remember that you must be sure that your marriage has broken down irretrievably and that reconciliation through marriage counselling won’t help anymore. If you have children born from this marriage, you must place their interests first when making your decision.

The divorce process could unfold even further. If you are a victim of physical and/or emotional abuse, your divorce attorney can also assist you with a protection order against your spouse and/or open a criminal complaint against the accused, after which prosecution could follow.


What are the grounds for divorce?

Section 4(1) of the Divorce Act, 1979 (Act No 70 of 1979) states the following requirement, which will be the starting point for your divorce:

“A court may grant a decree of divorce on the ground of the irretrievable break-down of a marriage if it is satisfied that the marriage relationship between the parties to the marriage has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between them.”

In section 4(2), three circumstances are set out which the court may accept as evidence of irretrievable breakdown of the marriage:

  • that the parties have not lived together as husband and wife for a continuous period of at least one year immediately prior to the date of the institution of the divorce action;
  • that the defendant has committed adultery and that the plaintiff finds it irreconcilable with a continued marriage relationship; or
  • that the defendant has in terms of a sentence of a court been declared an habitual criminal and is undergoing imprisonment as a result of such sentence.

You can read the Act at http://www.justice.gov.za/legislation/acts/1979-070.pdf.

Click here to read the complete Act.

In the case of Levy v Levy 1991 (1) SA 614 (A), the Court of Appeals ruled that a court doesn’t have a discretion to deny the divorce if irretrievable breakdown of the marriage has been proved by the parties.

(See http://www.saflii.org/za/cases/ZASCA/1991/81.html.)

It is important to understand that a court has a discretion not to grant a divorce order, if it is of the opinion that the marriage can still be saved by ways of marriage counselling. The court can then postpone the matter without assigning a date for the case to be heard again (sine die) to allow the parties to go for counselling, or dismiss the claim for divorce completely. For this reason, it is important to consult a family law and divorce attorney to assist you with the court papers and averments (statements, etc.), if necessary.

If you would like to arrange for a first consultation with a divorce attorney, kindly email admin@hfglaw.co.za.

(This article is an information piece and not a formal legal opinion. HFG Attorneys accepts no liability for damages caused by errors and omissions)

Sources:

The Divorce Act, 1979 (Act No 70 of 1979)
Matrimonial Matters 2017, LEAD

About HFG

HFG Attorneys Inc. was established in March 2018 after opening the doors in the winelands valley of Paarl, Western Cape. The company’s head office is based in Paarl, but assists its clients anywhere in South Africa when needed.

Family Law & Divorce Services

Company Details

HF Gonzales Attorneys Inc. t/a HFG Attorneys (Registration number: 2018/540437/21)