Getting a divorce in South Africa is very similar to most countries in the world. Where children are involved a lawyer will advise that parents settle disputes outside of family courts which is usually in the best interests of everybody. Separation can be handled maturely and in an adult manner and this should certainly be the goal for a couple that are separating and have a child or children from that marriage. A civil marriage is dissolved according to the rules of the Divorce Act whereas couples who are married in terms of African customary law may have some consequences determined by tradition and African custom.
Perhaps the biggest issue of those facing divorce in South Africa is the custody of children. It has to be decided on who is going to be the parent responsible for looking after the children and who takes care of them on a regular basis. If disputes arise over this then lawyers will advise and if no agreement can be reached between either of the parents then the court will decide who gets custody. The parent who does not get custody will in most cases still want to be a part of their children’s lives so an agreement needs to be established between both parents for access and visiting rights. Restricted access can be ruled by the court if it is felt that it is not in the children’s best interest for the other parent to have access rights.
Property will get divided up between the separating couple normally covered by an ante-nuptial agreement or pre-marital contract if either of these were drawn up when they got married. If the marriage was signed between a couple ‘in community of property with accrual’, both parties share everything, including all property and debt. ‘Out of community of property without accrual’ will allow both people to keep what they owned before the marriage and whatever they earned during. If the marriage is ‘out of community of property with accrual’ then each person gets to keep what they owned before marrying but both parties share what has been accumulated over the course of the marriage. In the case of default, the laws that were in place when a couple got married will apply to those wanting a divorce in South Africa.