What happens if there are children involved?
Before the court will issue a divorce, it has to be decided who will look after the children. The parents can make an agreement or the court can decide. The most important consideration in deciding which parent should have custody is the best interests of the children. The Family Advocate at the court can help investigate which parent is in the best position to look after the children and will represent the children in the court if necessary.
If the divorce is taking a long time, for example if the parties don't agree, then an interim custody order can be issued setting out who will look after the children while the divorce is being finalised. In African, Hindu and Muslim customary marriages, the wife usually takes custody of the children. According to African customary law, the father usually remains the children's natural guardian. The children of Hindu and Muslim marriages are regarded as illegitimate, so the mother is also the natural guardian. In all cases, the father still has a duty to support the children.
The parent who does not get custody will usually still want to see their children. There therefore needs to be an agreement about when, where and how this parent will have access to the children. If it is not in the best interests of the children for the other parent to have access rights, then the court can restrict access.
When a couple gets divorced, one party is often in a better financial position than the other. The person who has custody of the children will also have expenses that the other parent does not have. The court will issue a maintenance order requiring maintenance to be paid for the children and, depending on the circumstances, to the other party.
Maintenance for the children is paid to the parent who has custody (but it is important to remember that this is the child's right and not the parent's). All parents have a duty to support their children, including children who are illegitimate. If there are problems with maintenance after the divorce has gone through, these can be taken to the Maintenance officer at the Magistrates Court. Whether one party will have to pay maintenance or support to the other party depends on the circumstances.
If the parties cannot agree on how much should be paid then the court will decide. Because Hindu or Muslim marriages are not fully recognised as legal marriages, the wife has no legal status to claim support after divorce.
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