1. Understanding Divorce Laws in South Africa
When people get married, often they don’t think about getting divorced, a notion generally regarded as taboo. Consequently, having to deal with divorce in South Africa is often met with confusion. In South Africa, under normal circumstances, a divorce will not occur unless there is a court order requiring the spouses to no longer live together. This state of affairs cannot be changed merely by the instigation of a court action. Essentially, a divorce is a court action for the dissolution of a marriage. Just as is the case with any other court action, a person who wants a divorce must satisfy the requirements set by law in respect of divorce applications.
According to the laws of South Africa, a decree of divorce may be granted by a Division of the High Court of South Africa only on one or more of the following grounds: the irretrievable breakdown of the marriage; or mental illness of one of the spouses; or continuous unconsciousness of one of the spouses. In the absence of a court order requiring the spouses to live apart and being satisfied that there is no reasonable possibility of the restoration of a normal marriage relationship between these spouses, or that the spouses have lived apart for a continuous period of at least two years immediately prior to the date of the divorce action, the court may grant a decree of divorce on the ground of the irretrievable breakdown of the marriage.
2. Gathering Required Documentation
Divorce often creates certain emotions that result in poor judgment. If you find yourself in a divorce situation, the stern legal requirements will burden you. Discovering salutary options may build up confusion. The next steps should be followed before the divorce is filed in a Magistrates Court. Spouses with children should note that a parenting plan will only be accepted by the Family Court Office, and the family advocate will not interview the parents if the divorce is not litigated. Mutual consent applications are inapplicable in cases with maintenance issues. The purpose of a divorce is to dissolve a marriage, and any other issues are married to the divorce. It is a digital world and shared drives are commonplace. To ensure that you safeguard your future, make copies of all the important documents in your case and hold them in your own hands. Failure to provide adequate information often leads to incorrect advice and recommendations. Never ask a third party to obtain important documents, since they always tamper with the information.
Be mindful: If you are concerned about the confidentiality of your documents, select specific items and collect them personally. Cooperate and understand that the opposing party has the same fears. Be sensitive due to the pain and emotion of dissolving a marriage, however always remember the emotional impact of the process on the opposing party. Negotiate calmly, as once tainted there is no return. When asking for assistance or attempting to get assistance, remember who has assisted you because kindness and genuine assistance are difficult to locate in the legal environment. A statement needs to be made at the beginning. All of the following questions will have a direct influence on maintaining relations – especially if there are children. Always make a plan and protect the opposing party from an innocent party label. It should be costed and you should hold a copy of all costs. Only family advocates, the divorce court, guardians ad litem or someone else appointed by the court actually obtain the costs. Review your credit report and take action to reduce or settle the claims. Notify or demand settlements of claims that appear on the report but are not in your name. Ensure that your employer deposits a copy of your monthly salary into a bank account held in your own name, since shared bank accounts can be closed at the whim of either party.
3. Choosing the Right Divorce Process
You should seriously consider mediation or collaborative divorce. Although only a handful of lawyers in this country are trained in collaborative law, most divorce lawyers in South Africa are able to assist clients through mediation. If one party is seeking an uncontested divorce or if you have a marriage contract which provides for a mediation process, then an out of court option could save you money, time, stress, and all the other benefits you have read about in this guide. Mediators charge anything from R500 per hour to R2000 per hour, and more. Some mediators charge parties R10,000 to R30,000 for a full divorce mediation. Some of those parties unrepresented by lawyers have lost significant rights because they did not know what to take into account in a divorce or they were cowed or misled by the other spouse, “Don’t talk to a lawyer, he will charge you R20,000, you can pay me the money instead.”
Your mediator need not be a lawyer, but he or she should be knowledgeable about divorce law. Those not legally trained could find that they make a binding agreement which does not adequately protect their rights, and which could be challenged by the other party, at a great cost. Many mediators will refer their clients to consulting attorneys, for advice on what an “equitable” outcome should look like. Even if you do consult a lawyer, you are likely to save money and brain damage by mediating, rather than by litigation. Very few mediation processes break down. Those that do are usually cases where one party is afraid of being abused, where the facts (not just the parties’ perceptions) are terribly out of balance or there has been an unequal relationship for many years, or where there is deep mental illness. A Family Advocate, with a fair deal of experience, could also be a good option. A Family Advocate will not usually make an award to one of the parties that is not based on a judgment or a mutually chosen dispute resolution mechanism such as mediation or arbitration. This makes the Advocate a very good option.
4. Division of Assets and Debts
At the time of divorce, the spouses have to divide whatever assets they acquired and debts they incurred after marriage. The law provides that if the parties to a divorce are unable to come to an agreement, or there is no prior agreement about the division of property, the court will conduct the division when the divorce order is granted. We would provide a guideline about how the usual matrimonial property systems will influence the division of assets and debts at the time of divorce.
The most important question is obviously: what assets and debts are included in that which must be divided? As a rule, the only assets and debts which are included in the division are those acquired/incurred by the spouses during the marriage. In the case of some marriages, there might be some important exceptions. For instance, an inheritance which one spouse receives during the marriage time is not a “normal” gain by that spouse. In many cases, it should be excluded from division, but in very specific cases, a court might still include it in the division. In the case of customary marriages, there are special rules which will influence the division. If spouses have concluded a valid antenuptial contract, it is especially important to know about the exclusion of assets and debts because such contracts mostly have rules which replace the normal common law rules.
5. Finalizing the Divorce and Moving Forward
Strictly speaking, divorce actions should be completed within a reasonable time. Anything longer than two years is viewed as unreasonable. Judges are keen to give closure to the parties, especially where there are children involved. However, there are exceptional circumstances that could give rise to a postponement that is considered reasonable by the court. For instance, where the marriage, in community of property, is long and there is a substantial accrual that has to be looked into, financial adjustments that cannot be achieved within a reasonably short time, where a party is waiting to become financially stable before finalizing the divorce and where foreign assets need to be wound up.
Sometimes, a decree of divorce is necessary, such as when dealing with foreign nationals married to South Africans. The Home Affairs Department will not entertain a person who is still married to a South African. Neither will a visa be granted on the basis of a relationship when a prior marriage is still in full force. The overseas agents of the department, for example, will insist on the decree of divorce before a facilitation request is honored. Similarly, the office in South Africa will also require legal proof that the divorce has been granted by a court of law. A divorce application, already in our experience, has led to a total breakdown of family relationships in as short as 3 months. For some people, once that divorce process starts, you are no longer family. You are now the dreaded enemy.
6. THE PROCESS
Divorce is never an easy process, no matter where you are in the world. The emotional toll it takes on both parties involved can be immense, and navigating the legal system can feel like a never-ending uphill battle. In South Africa, the road through a divorce can be particularly windy, with each step bringing its own set of challenges and obstacles to overcome.
To start the process of getting a divorce in South Africa, one must first be legally separated. This means no longer living with your spouse in a manner befitting of a husband and wife. Either party can file for divorce in the High Court, citing irreconcilable differences as the reason for the split.
The next step is to negotiate the terms of the divorce settlement, including division of assets, child custody arrangements, and spousal support. This process can be contentious and often requires the expertise of a legal professional to ensure that both parties are fairly represented and that all legal requirements are met.
Once the terms of the settlement have been agreed upon, the divorce can then be finalized by the court. This typically involves appearing before a judge to present the settlement agreement, after which the divorce decree will be issued. This decree officially dissolves the marriage and allows both parties to move forward with their lives independently.
Throughout the entire process, emotions can run high and tensions can flare, making it crucial to approach the divorce with a level head and a firm understanding of your rights and obligations. Seeking the guidance of a qualified legal professional can help to smooth out the bumps along the way and ensure that the divorce is resolved as amicably and efficiently as possible.
In conclusion, the road through a divorce in South Africa can be a challenging and emotional journey, but with the right support and guidance, it is possible to navigate the process successfully. By approaching the situation with a clear understanding of the legal requirements and a willingness to compromise, both parties can ultimately achieve a resolution that allows them to move forward with their lives.
