"In sickness and in health, ‘til death do us apart."
That is what people say, gazing lovingly into each other'seyes, when they are promising to spend their forevers together.
But in some cases, feelings and circumstances change andthey decide to part before death comes and they want to live separate lives.
That was the case in the lives of actors Mona Monyane andKhulu Skhenjana. The pair tied the knot in 2017. And after life's challenges,they decided to call it quits.
Mona recently took to social media to say despite efforts onher part, she is till legally a married woman. Mona explained how she had filedfor divorce numerous times, but her estranged husband is not "signing" the divorcepapers. According to Mona, they are married in community of property.
Drum chats to legal experts who explain that the divorceprocess in South Africa does not require either of the parties to sign papersin order end the marriage.
Attorney Zincedile Tiya of Zincedile Tiya Incorporated explainsthat in South Africa, no court can force you to be married to someone you donot want to be married to.
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"The only thing that people fight about here is the assetsand custody of the children. Not the divorce decree itself."
Tiya says a person can simply walk into the courthouse intheir jurisdiction and get a form that will be served on their partner by thesheriff of the court.
"Once the partner is served, they have 10 days to file a noticeof intention to defend. If they do not file that notice, partner A can go backto court and obtain a default judgment. And just like that, the marriage isover.
"Someone can also go to their attorney and follow a similarprocess. Then there may the issue of how to deal with their assets accumulatedin the marriage and the children's custody. So still in that case, one is notdefending the divorce decree itself, but rather the assets."
Tiya says sometimes of the parties becomes hostile because ofthe assets they may lose in the divorce.
"In South Africa, we only have contested and uncontested divorces.Not signing of divorce papers.
"Some courts grant the divorce decree and reserve the orderon the assets and the children. In other courts, the divorce is done pendingthe finalisation of how the assets will be dealt with, including the children."
Another attorney, Ayanda Gwabeni of Ayanda Gwabeni andPartners says couples wanting to divorce have three options:
- Go to the registrar of the court you want to getdivorced in. It can be done without an attorney.
- You can go to Legal Aid South Africa for an attorneyto handle the matter for you free of charge
- If you have funds, you can get the services of aprivate attorney.
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"There is not requirement for another party to sign papersin South Africa. Them not wanting to participate in the process does not stopanything from going ahead. A settlement agreement is when they may need to sign.
"However, it is important to note that a settlementagreement is not a requirement for the finalization of a divorce action. It isjust a method to minimize the issues.
"If one party is duly served, and they choose not toparticipate, the matter is then considered to be uncontested or unopposed.
"For those married in community of property, the court willorder the division of their joint estate. The divorce decree will be granted,then you can deal with the division of the estate.
"If you are still not finding joy in concluding the matterof the settlement agreement, then you can go back to court and a Receiver willbe appointed to deal with the division of the joint estate."
