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Types Of Courts for Divorce and Family Law in South Africa

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Types Of Courts for Divorce and Family Law in South Africa

The Sithole Case: Addressing Injustices in South African Marriage Law

South Africa has many different types of Courts. Sometimes, this may leave Parties confused about which Court to approach to deal with a specific matter, especially on the issues that deal with children, divorce, and even maintenance.

It is often best to seek this advice from your Attorney, who would guide you on the way forward regarding your matter and relieve you of any uncertainty or discomfort you may have.

The basic rule to determine the Court you would approach will depend on your instituting case.

Jurisdiction means the official power to make legal decisions and judgments.

Divorce and Family Law Court Types Illustration

Jurisdiction For Divorce  

Unfortunately, in certain instances where a marriage has broken down irretrievably, the Parties are left with no option but to seek a divorce.

Previously, divorces in South Africa had to occur by lodging your divorce proceedings within the High Courts.

This inevitably resulted in these Courts becoming overburdened with divorce proceedings which increased the waiting time for most Parties wishing to obtain a divorce decree, especially when the divorce was contested.

The Regional Court’s Amendment Act came into effect in 2010 to amend the Magistrate Court Act to remedy this backlog. This enabled regional divisions of the Magistrates Court to deal with some matters, including divorce proceedings.

Due to this Amendment Act, Parties can now institute their cases either in the High Courts or the Regional Courts, commonly referred to as the Family Courts.

While it is advisable to seek the assistance of a family law attorney who is able to guide you in your divorce proceedings and in some cases, even help you mitigate your matter to avoid an uncontested divorce, this is not a requirement.

Parties can also approach their local Regional Court of the Magistrates Court, where they will be able to obtain the necessary forms to initiate their divorce proceedings on their own. Parties may also issue out of the relevant High Court.

Jurisdiction For Maintenance  

The aggrieved party must first identify where the order was made for maintenance. Maintenance complaints concerning High Court Orders can be instituted at either the Court that made the order or even at the maintenance Court.

Complaints that deal with a Regional Court Divorce Order or a Maintenance Court Order must be made at the Maintenance Court that has jurisdiction to hear the matter.

Every District Court is also a Maintenance Court within its jurisdiction.

The Maintenance Court has jurisdiction to receive maintenance complaints from individuals who reside within that Court’s district.

This means that the aggrieved party will have to lodge their complaint at the District Court in the area where they live and pursue the matter there. Complaints regarding new or even existing maintenance orders can be made in this Court.

Suppose you are in contravention of a maintenance order. In that case, it is a criminal offence, and you could go to jail for up to a year, be fined, or both. To avoid such punishment, the respondent must satisfy the Court that they could not pay maintenance because of a lack of money or income.

Jurisdiction For Protection Orders  

In South Africa, the Complainant can lodge an application for a Protection Order at a Magistrates’ Court in the area where the Complainant or the respondent lives, works, or even where the incident occurred.

The Complainant will have to complete the required application form, and it is advisable to include as many details as possible. One can obtain this application form from the clerk of the Court.

In cases where the Complainant is a child, the child can approach the Court and apply for a protection order and not necessarily be assisted by a Parent or Guardian.

It is also possible for a person to apply to Court for a protection order on behalf of someone else. The person making the application must have an interest in the wellbeing and safety of the Complainant.

Where the Complainant is an adult, the Complainant’s written consent is required for someone to make an application on their behalf.

The purpose of a protection order is to prevent the repetition of domestic violence or sexual harassment by stating the nature of the conduct that the alleged offender must cease from committing. Such protection order has no expiry date.

The premise is that as long as the offender complies with the said protection order, the Complainant will be safe.

Children’s Court  

The Children’s Court is a particular type of Court that deals with issues affecting a child. In South Africa, every Magistrates’ Court is also a Children’s Court.

The Children’s Act enables any person interested in a child to apply to the Children’s Court for a specific order. These Courts are designed to be user-friendly and are far less complicated than many other Court proceedings.

The Magistrates Court nearest to where the child lives will have jurisdiction to attend to the matter.

Parties should be mindful that it is not the Court nearest to the person approaching the Court on behalf of the child, but rather the Magistrates’ Court that is closest to where the child is living.

In this instance, a child is someone under the age of 18 years. The Courts will determine the best interests of the child.

High Court 

The High Court may deal with a divorce or family-related matter as a Court of the first instance or an appeal Court.

Supreme Court of Appeal 

The Supreme Court of Appeal is based in Bloemfontein in the Free State. Except for the Constitutional Court, it is the highest Court in South Africa, and it only deals with cases sent to it from the High Court.

Constitutional Court 

The Constitutional Court is the highest or apex Court in South Africa and deals with constitutional matters.

Conclusion on the Difference Types of Courts for Divorce and Family Law  

While jurisdiction can sometimes be a complicated and confusing issue, it is essential to remember that your divorce does not necessarily have to be instituted in the High Court.

Both the Regional Court and High Court can deal with divorce matters.

Remember, similar to Maintenance Courts (District Level), every Magistrates’ Court is also a Children’s Court, even though the High Court is regarded as the upper guardian of all children within South Africa.

Always confirm jurisdiction before you institute an action or proceed with a Court application!

 

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