Can my spouse deny our divorce?

22 June 2017 334
Your spouse may oppose the divorce, but he cannot refuse a divorce.1 It is not your spouse who grants a divorce, but rather the Court. In terms of Section 3 of the Divorce Act 70 of 1979, the only grounds on which the Court may grant a decree of divorce are the irretrievable breakdown of the marriage or the mental illness or continued unconsciousness of a party to the marriage.2 Your first cause of action would be to consult an attorney and to proceed to issue summons against your spouse. 

Section 4 of the Divorce Act  states that a marriage has broken down irretrievably if the marriage relationship has reached such a state of disintegration that there is no reasonable prospect of a normal marriage relationship between the parties. The Court may accept evidence that:

a. The parties have not lived together as husband and wife for a contiuous period of at least one year immediately prior to the institution of the divorce action;
b. That the defendant has committed adultery and that the plaintiff finds it irreconcilable with a continued marriage relationship; or
c. 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. 3

Should your spouse proceed to oppose the divorce, it will then be a contested divorce. A contested divorce may take anything from one to three years to finalize. A contested divorce requires an extensive exchange of pleadings and discovery process. 

Since you are married in community of property, you will be entitled to 50% of all assets acquired before and during the marriage. This includes any immovable and movable property, as well as pension fund interests, investments and annuities. You will also be held liable for 50% of all liabilities of the communal estate. A marriage in community of property essentially means that the communal estate will be divided equally. 

Should your spouse not wish to oppose the divorce, the parties may conclude a settlement agreement. The settlement agreement may deivate from a 50% division of the estate, as long as both parties are satisfied with the terms. 
 
Should difficulties arise with regard to care of and access, as well as maintenance with regard to the minor children, you may approach the court for interim relief.  You may ask the court to make an order with regard to the care of and access to the minor children as well as an order relating to maintenance, pending finalisation of the divorce action. You may also request a contribution to legal costs during these proceedings. 

On finalisation of the divorce, the court will grant a decree of divorce. In a contested divorce, the court will grant a decree of divorce and will stipulate the terms of the division of the estate. In an uncontested divorce, the court will grant a decree of divorce which will stipulate the settlement agreement be incorporated as an annexure thereto. 

Reference List:
1. http://www.legal-aid.co.za/selfhelp/?p=106 
2. Section 3 of Act 70 of 1979, The Divorce Act
3. Section 4 of Act 70 of 1979, The Divorce Act
 
Tags: Divorce
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