THE 101 ON DIVORCES
As a family law practitioner, I have experienced the many sides of divorces. Extra marital affairs, abuse, or often it is simply because the couple has grown apart with the many distractions that life has thrown their way. Clients walk in and don’t know where to start. Who will pay for school fees? What will happen to the house? Can they still share a medical aid plan? Often the emotions and feelings of hurt will complicate a divorce more than what is necessary. Clients can’t seem to separate their roles as mommy and daddy from future ex-spouses. So where does one begin…
- We have two types of divorces in South Africa: contested and uncontested. Contested occurs when the parties are incapable of reaching an agreement. From my experience, there are 3 areas that parties fight the most about:
The children: who sees who, when and how? How much is paid and by whom?
- The Assets of the parties: how is it divided between the parties and whether the marital regime will have an impact on the division of the property?
- Will there be any spousal maintenance payable.
I always try and distinguish what the parties are in dispute over as it is usually something simple that when resolved makes it possible to settle a divorce without incurring a fortune in legal fees. It is possible to still get divorced even if there is an aspect pertaining to the kids that the parties cannot agree on. In these cases, we refer the dispute to the children’s court and then proceed with the divorce in the divorce court.
I have had on many occasions divorces that begin as contested, and through some mediation, we are able to convert them to uncontested. Obviously, it goes without saying that the sooner we get it settled, the cheaper and quicker the divorce will be finalised.
Uncontested simply put is when the parties have settled their points of contention and are able to agree to a settlement agreement that gets made an order of court. Should there be minor children, then the family advocate looks at the agreement and ensures that the children’s interests are protected.
Regardless of which direction your divorce is heading, I would always advise booking a consultation with an attorney. Even if the consultation just points you in the right direction. It is vital that your divorce decree is 100% correct as it is very difficult to change the terms of it when it is finally concluded. You may in some instances vary the order, but you cannot add terms that were never agreed upon at the time. This is unfortunate as often I will have clients that did DIY divorces and after many years realise that they should have claimed a portion of their partners pension during their divorce.
Divorces need not be the nightmares we see on television. They are not normally easy as they come hand in hand with a radical change in one’s life. Often parties move into new houses/neighbourhoods. Household income is usually decreased and the biggest obstacle is learning how to adapt to the new normal. I usually try remind clients that once they have reached the point of divorce, and have exhausted all possibilities of reconciling, they need not be too hard on themselves as divorce does not mean failure. It merely means that they are about to embark on a different journey in life.
PLEASE NOTE THAT WE STRONGLY RECOMMEND THAT YOU CONTACT US DIRECTLY FOR A CONSULTATION FOR SPECIFIC ASSISTANCE AND ADVICE REGARDING YOUR SPECIFIC MATTER AS THE INFORMATION CONTAINED IN THIS ARTICLE IS INTENDED AS A GENERAL GUIDELINE AS TO FAMILY LAW IN GENERAL AND DOES NOT CONSTITUTE LEGAL ADVICE.