Navigating the Complexities of Domestic Violence and Divorce in South Africa
Divorce is undoubtedly a challenging life event, but when domestic violence is a factor, the situation becomes significantly more complex and requires careful legal navigation. At Aucamp Attorneys, we understand the sensitive nature of these cases and are dedicated to providing you with the information and support you need to protect yourself and your loved ones. This page outlines the legal definition of domestic violence in South Africa and how it impacts divorce proceedings.
Understanding Domestic Violence in South Africa
The legal definition of domestic violence in South Africa is comprehensive and aims to protect individuals within various domestic relationships from harm. The primary legislation governing this is the Domestic Violence Act 116 of 1998, as amended by the Domestic Violence Amendment Act 14 of 2021.
What Constitutes Domestic Violence?
According to the amended Act, "domestic violence" includes, but is not limited to:
- Physical Abuse Hitting, slapping, punching, or any other form of physical harm.
- Sexual Abuse Forcing a partner to engage in sexual activities without consent.
- Emotional, Verbal, and Psychological Abuse Using words and actions to undermine a partner’s self-worth or mental well-being, including ridiculing or insulting religious or spiritual beliefs.
- Economic Abuse Controlling a partner’s access to financial resources, including deprivation of financial resources to which the complainant is entitled under law (e.g., education expenses, rent).
- Intimidation Using threats or other tactics to instil fear.
- Harassment Engaging in unwelcome conduct that torments or inspires fear in the complainant, including unwelcome sexual attention.
- Stalking Repeatedly following or monitoring a partner’s movements.
- Spiritual Abuse Manipulating the victim’s religious or spiritual convictions and beliefs to justify or rationalize the abuse.
- Damage to Property Destroying personal belongings to exert control.
- Elder Abuse Abuse of an older person within a domestic relationship as defined in the Older Persons Act 13 of 2006.
- Coercive Behaviour Compelling or forcing the victim to abstain from or do anything that he or she has a lawful right to do.
- Controlling Behaviour Making the victim dependent on or subservient to the abuser, such as isolating them from support or regulating their everyday behaviour.
- Exposing a Child to Domestic Violence Intentionally causing a child to see or hear domestic violence or experience its effects.
- Related Person Abuse Threatening or committing physical violence or damage to the property of a related person, causing harm to that related person.
- Entry into Property Illegally entering the complainant’s or a related person’s residence, workplace, or place of study without consent (in certain circumstances).
- Any Other Controlling or Abusive Behavior Any behaviour that harms, may cause imminent harm, or inspires the reasonable belief that harm may be caused to the safety, health, or well-being of the complainant or a related person.
What is Considered a Domestic Relationship?
The definition of a "domestic relationship" is also broad and includes:
- Marriage (including customary and religious marriages).
- Living together in a relationship in the nature of marriage (including same-sex relationships).
- Being the parents of a child.
- Sharing or recently shared the same residence, premises, or property within the preceding year.
- Relationships between family members related by consanguinity, affinity, or adoption.
- Engagement, dating, or customary relationships, including actual or perceived romantic, intimate, or sexual relationships of any duration.
- Close relationships characterized by trust, dependency, and the length of the relationship, even if the parties are not related.
Legal Obligation to Report
It is important to note that any adult person has a legal obligation to report to a social worker or the police any knowledge, belief, or suspicion of an act of domestic violence perpetrated against a child, a person with a disability, or an older person. Failure to do so is a punishable offense.
Protection for Whistleblowers
The law provides protection for individuals who report domestic violence in good faith. No civil or criminal action can be instituted against a reporter, and their identity cannot be disclosed unless the interests of justice require otherwise.
Domestic Violence and Divorce Cases in South Africa
Marital violence, now more accurately termed domestic violence within the legal framework, has a significant impact on divorce proceedings in South Africa. The courts prioritize the safety and well-being of the victim and any children involved.
How Domestic Violence Affects Divorce
- Spousal Maintenance Evidence of domestic violence committed by one spouse against the other can be a significant factor when the court considers spousal maintenance. The court may be less inclined to grant maintenance to an abusive spouse and may award more maintenance to the victim to assist with their rehabilitation and future independence.
- Division of Assets While South African law generally follows the principle of equal division of the joint estate in divorce cases, evidence of egregious domestic violence may influence the court's decision on the fair and equitable distribution of assets.
- Child Custody Arrangements This is a critical area where domestic violence has a profound impact. The Children’s Act 38 of 2005 mandates that the best interests of the child are paramount in all matters relating to them. If the court finds that one parent has been abusive, it will take stringent measures to protect the child:
- Supervised Visitation The court may order that the abusive parent's contact with the child be supervised by a social worker or another designated person to ensure the child's safety.
- Restricted Access In severe cases, the court may restrict or even deny the abusive parent any contact or visitation rights with the child if it is deemed necessary to protect the child from harm.
- Safe Exchange Locations The court may stipulate that the transfer of the child between parents occurs in a safe, public place or through a designated third party.
- Psychological Evaluations Courts may order psychological evaluations of the parents and children to assess the impact of the abuse and inform custody decisions.
- Exclusion of Mediation In cases where there is evidence of domestic violence, divorce mediation may not be a suitable option to ensure the safety and prevent intimidation of the victim.
Steps to Take When Divorcing an Abuser
- Document Everything Keep a detailed record of all incidents of abuse, including dates, times, descriptions, photographs of injuries or property damage, medical reports, police reports, and witness statements. This evidence is crucial in court.
- Seek Legal Assistance Immediately Consult with a family law attorney experienced in handling divorce cases involving domestic violence. They can advise you on your rights, guide you through the legal process, and ensure your case is presented effectively. Contact Aucamp Attorneys for expert assistance.
- Obtain a Protection Order Applying for a protection order at your nearest Magistrate’s Court should be a priority. This legal document provides immediate protection and serves as vital evidence of abuse during divorce proceedings. The process involves:
- Application Completing an affidavit detailing the abuse experienced.
- Interim Order The court may issue an interim order for immediate protection.
- Serving the Order The interim order must be officially served on the abuser.
- Return Date Both parties will attend a hearing where the court decides whether to make the order final.
Help is Not Far with Aucamp Attorneys
Domestic violence significantly influences divorce proceedings and child custody arrangements in South Africa. The legal system provides various protections to ensure the safety and welfare of victims and their children. If you are facing such a situation, remember that you are not alone.
Contact Aucamp Attorneys today for compassionate and expert legal assistance to navigate the complexities of divorce and domestic violence. Your safety and the safety of your children are our priority.