Divorce

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.

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.