Notes Chapter 15

Chapter 15 – Miscellaneous matters regarding divorce:

 

Effect of divorce on a will:

 

·                 Spouse nominates the other as beneficiary – Question what if they divorce and they do not change their will?

·                 Sec 2B of the Wills Act 7 of 1953 – provides if testator dies within 3 months of his divorce – then the ex-spouse will not inherit.

·                 Therefore if you don’t want your ex to inherit  – must change/revoke the will otherwise will inherit if dies more than 3 months after divorce.

 

Divorce Proceedings:

 

·                 Meaning of divorce action: sec 1 divorce act = includes action for decree of divorce, application pendent elite for interdict/interim care or contact, payment of maintenance, application for cost contribution, application for substituted service or edictal citation or application to make application like a pauper.

·                 Jurisdiction: Sec 2(1): if either of the parties is domiciled on date when action is instituted; or is ordinary resident on date that date for at least 1 year immediately before divorce issued.

·                 Courts= high court, divorce courts or regional divisions reflected ito sec 9 and 10 of Jurisdiction of regional courts amendment act.

·                 Institution f a divorce: must personally institute divorce action. Curator bonis cannot.

·                 No method stipulated – but by way of an action. (Combined summons –Rule 17 of Uniform Rules of Court).

·                 If undefended and no children – court does not require either party to be present as all info can be submitted by affidavit. 

·                 If undefended with kids – require plaintiff to give viva voce evidence

·                 If defended – both present.

·                 Procedure: presently adversarial procedure – suggested must rather use inquisitorial approach or alternative dispute resolution.

·                 Children’s act promotes mediation eg sec 21 imposes compulsory mediation on unmarried persons cannot agree whether father meets requirements for parental rights.

·                 Court also empowered to discretion: van der Berg v le Roux – court used power as upper guardian to compel mediation before approaching court again. ( in this case see a specific psyc and split the costs)

·                 Cannot use arbitration as sec 2 of arbitration act 42 of 1965 prohibit arbitration iro matrimonial matters.  Is a recommendation to amend the act? ( cut lawyers out – fees)

 

 

 

 

Relief pendente elite:

 

·                 R43 uniform rules of court – cost contribution, maintenance (spousal & child), contact rights and care

·                 Costs: sec 10 court has discretion that is just.

·                 Ltd publication of info: sec 12 divorce act – only names, order of court can be published.  Protect privacy and dignity – but argued that id may be published therefore not protecting identities and at same time ltd right to freedom of expression – declared sec 12 unconstitutional. Now cannot publish names or any info that may lead to identity.

 

Abolition of orders for judicial separation:

 

·                 Before court could grant order for judicial separation, meaning marriage continued but parties no longer bound to live together.

·                 Sec 14 Divorce act abolished (closed down) court’s right to make such orders.