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Family Law

FAQs

To get divorced means to legally terminate a marriage. A marriage can only be terminated through the death of one of the spouses in the marriage or through the legal process of a divorce action.

A divorce action is initiated by way of a divorce summons and particulars of claim (generally drafted by an attorney who specialises in family law). It runs through the same legal process as any other civil matter, unless the parties are able to agree to a settlement of the divorce (usually embodied in a document known as a consent paper), which is duly made an order of court. On the date on which a Judge grants a decree of divorce, the parties cease being married to one another.

Parties in a marriage are legally obliged to maintain each other according to the respective parties’ means and needs. Similarly, parents are obliged to maintain their child(ren) until such time as the child(ren) reach the age of majority (18 years old), or becoming self-supporting, whichever occurs last.

These maintenance obligations are not necessarily extinguished when the marriage is terminated through divorce. When parties get divorced, provision is generally made in the divorce order (or consent paper) for the payment of maintenance by one party to the other in respect of spousal maintenance and/or maintenance of the parties’ minor children.

If one of the parties are not complying with the payment of maintenance (as required in terms of the court order), the affected former spouse/parent of the child(ren) (or the child if he/she is 18 years old) may approach a maintenance court to enforce the order, by for example lawfully executing against the defaulting party’s assets to realise his/her maintenance debt. It is advisable to seek the assistance of an attorney specialising in family law in maintenance court matters.

In the context of family and specifically divorce matters, a care and contact assessment is conducted to determine in whose primary care a minor child should be placed (in other words, with who the child should primarily live) and to determine what arrangements pertaining to the care of the child should be put in place to protect the best interests of the minor child, as envisaged in the Children’s Act 38 of 2005. A child care expert (such as an adequately qualified psychologist or social worker) generally conducts these important assessments.

Surrogacy is the process whereby a surrogate mother is artificially fertilised for the purpose of bearing a child for what is known as the commissioning parent(s). People may only have a child through surrogacy where a valid surrogate motherhood agreement has been concluded between the surrogate mother and the commissioning parent(s) and such surrogate motherhood agreement has been confirmed by the High Court that has jurisdiction over the matter.

The Children’s Act 38 of 2005 contains several validity requirements for surrogate motherhood agreements. It is advisable to obtain the assistance of an attorney who specialises in family law when entering into such agreement, to ensure that the agreement is legally sound and is in fact enforceable.

Who to contact

Family Law

Marike Koen

BA LLB 021 808 5619
Family Law

Marike Koen

BA LLB 021 808 5619