Women and Divorce
Divorce is a serious step. It can affect the spouses and their children for the rest of their lives. Before getting a divorce, the husband and wife should try to get help from social welfare agencies or marriage counselors.
Separation
If a marriage breaks down and the partners do not want a divorce, they can agree to separate. This can be informal - they just agree between themselves on the conditions of the separation. Or it can be a formal separation drawn up by a lawyer. This can be expensive but it is easier to prove later what the partners agreed to.
If the partners later want to divorce, the separation agreement can help them. It shows that there was an 'irretrievable breakdown' in the marriage (see below). And the court can use the separation agreement to make the arrangements about property, maintenance, custody and access to the children in the divorce order.
A wife and husband sometimes need time to think about their future. And for religious reasons some people do not believe in divorce. In these situations a separation rather than a divorce is the best solution.
Divorce
Unlike a separation, a divorce legally ends a marriage. Once a divorce is granted, each partner may legally marry someone else.
There are only two grounds for divorce:
The 'irretrievable breakdown' of the marriage or the mental illness or continuous unconsciousness of one partner
Irretrievable breakdown
This means the couple can no longer live together as man and wife. Both partners, or one partner, must prove to the court that the marriage broke down so badly that there is no reasonable chance of getting back together.
Examples of the kind of evidence the court will accept as proof of irretrievable breakdown:
· The couple has not lived together like husband and wife for a period of time.
· One partner had sexual intercourse with somebody else and because of this the other partner finds it impossible to continue living together as husband and wife.
· One partner is in prison after being declared an 'habitual criminal'. (This means he or she keeps committing crimes, and because of this was sentenced to 10-15 years in prison.)
· One partner deserted the other.
· One partner abused the other, for example the husband keeps assaulting the wife.
· One partner is an alcoholic or a drug addict.
· The partners no longer love each other - they may be too different, or they married when they were too young.
· One of the partners finds it impossible to live together as husband and wife for any other reason.
Mental illness or unconsciousness
The person wanting the divorce must show the court that the other spouse was admitted to or detained in a mental institution. The person must also show that the spouse has been in the institution for at least two years and that the doctors do not think he or she can be cured.
A person can also get a divorce if the other spouse is permanently unconscious. The spouse must have been unconscious for at least 6 months, and the doctor must see no hope of recover.
Ending an African customary marriage
Customary marriages can only end if there is a court order. The same grounds for divorce that apply for civil marriages now apply to customary marriages. In other words if the court agrees that there has been an 'irretrievable breakdown' of the marriage then it will agree to dissolve the marriage. The spouses are free to settle on any terms they choose, but the court will make an order regarding the custody and guardianship of any minor children and may make an order for maintenance to be paid, taking into account any arrangement that may have been made in terms of customary law.
In terms of the customary agreement between the spouses, the wife's family may have to return at least part of the lobola to the husband's family. If the husband publicly rejects his wife for no reason at all, he will not get any lobola back. But if the husband has what is considered a just reason to reject his wife he may ask for the lobola back.
A husband may be considered to have good reason for rejecting his wife if she neglects her duties in the home, or neglects her children, or denies him sexual intercourse. If the wife sometimes sleeps with another man, this may not be considered enough reason for a man to reject her, but continual unfaithfulness may be considered a good reason for ending the union.
A wife may be considered to have good reason for deserting her husband if he accuses her falsely of witchcraft, or ill-treats her unreasonably or abandons her.
Ending Muslim or Hindu marriages
If a man and woman were married by an imam in the Muslim religion, or a priest in the Hindu religion, but they did not also have a civil marriage, the law says they were not lawfully married. So they don't need to use the court if they want to get divorced.
Our courts partly recognise Muslim marriages, so for example a Muslim wife can claim from the husband's estate as his spouse.
The law may change soon to recognise Muslim and Hindu marriages.
