Are you really ready for a divorce?
Your marriage is in question and you’re facing a real dilemma. You may be the one who is deciding should you stay or should you go. Or you may be the one who has just heard that your spouse wants a divorce.
Most couples who begin a divorce are unprepared and are often not even on the same page when they begin. It is this lack of preparedness and readiness for a divorce that either causes marriages to end prematurely or divorces to deteriorate into competitive contests. The decision to obtain a divorce is one of the most crucial decisions a person can make with consequences that last for years or a lifetime. A decision this important requires much greater attention than it is usually given by both couples and professionals. It is a process in and of itself. Once a couple is prepared and ready, they will sooner be able to begin their divorce by both being on the same page and this will eliminate most of the emotional and financial struggles that cause divorces to become adversarial and ruthless.
A married couple can end their marriage through divorce. The process of the divorce depends on the type of marriage:
- Civil marriages are dissolved according to the rules in the Divorce Act.
- Marriages in terms of African Customary Law are dissolved according to the civil law but some of the consequences are determined by custom and tradition.
- Muslim and Hindu marriages are dissolved in terms of the rites and rituals of the religion
A divorce action is instituted by the issuing of a summons. You can divorce in either the Regional Court of the Magistrate Court having jurisdiction in your area or in the High Court. To start the divorce process you need to serve a Summons. A divorce summons is unique in that it must be served personally on the defendant by the sheriff of the court.
The spouse wishing to end the marriage must issue a summons against the other spouse, stating that the relationship has broken down, that there is no reasonable prospect of restoring the relationship and which matrimonial property regime governs the marriage. The summons must make provision for the division of the estate, either stating that the parties have entered into a prior agreement or asking the court to divide the joint estate or enforce the provisions of the ANC. Parties must also set out what the arrangements are with regards to any children born or adopted during the marriage.
Mediated Divorces Explained
”My partner and I are considering a divorce.”
Divorce should never be the first choice when marital problems arise. If you believe that a marital counsellor may be able to help seek counselling. Should a divorce be inevitable, speak to a mediator. Under South African law one cannot prohibit a partner from approaching the Court for a divorce – not participating in the divorce could negatively affect the outcome as that Party would be denied the opportunity of giving inputs to the Decree of Divorce.
Legal grounds for divorce:
Either of the Parties need to prove to the court that the marriage has broken down irretrievably.
The conditions for this include, inter alia:
- A spouse has moved out of the house
- Abuse of any kind by either of the spouses
- Habitual criminality
- Neglecting to support financially
- Constant arguing
- Loss of love between the spouses
What will happen to our children?
Both Parties need to agree on who will be the primary caregiver. In recent years our Courts have shown greater flexibility with regards to shared care (shared custody), where the Children spend a period of time with one spouse and the same period of time with the other (subject to age considerations – a social worker may be appointed to compile a report in this regard).
Should the Parents not be able to agree, the Court – as upper guardian of all minors – will decide, usually on recommendation by the office of the Family Advocate. The Court may hold the Parties liable for the cost of a social worker’s report.
Given the stress of the divorce itself, the Children should ideally not be subjected to further distress. Mediation enables the Parents to work out their differences and minimize the impact on their Children.
How will our property be divided?
If the Parties are unable to arrive at a settlement, the court may decide to liquidate the assets and divide the net returns based on the applicable marital property regime. Typically there is a loss in the value of the returns as the assets are liquidated.
Mediation is not limited by these processes: the goal is to find out-of-the-box solutions and to lose as little as possible in terms of the value of the shared estate. Where needs be the services of an expert (financial / property / business) can be employed to this effect.
What is the difference between contested and uncontested divorces?
There are typically two types of divorces, the contested or opposed divorce and the uncontested or unopposed. The latter type of divorce is the best and most cost effective for all parties concerned. An uncontested divorce can be finalized in as little as 4 weeks. If a divorce is contested it may take between 2 – 3 years, but most contested divorces do settle long before they go on trial.
A contested divorce is typically where the Parties disagree on:
- With whom the Children should live
- Contact with the Children
- Maintenance for the Children or the spouses
- Division of the communal estate
- Contested divorces usually entail multiple Court appearances which dramatically increase the cost to each of the Parties.
An uncontested divorce is where the Parties agree on all aspects and sign a Divorce Settlement Agreement, which the Court then incorporates into its Decree of Divorce. The costs are substantially lower and the Parties do not need legal representation.
At the end of the process the mediator hands the Parties the complete documentation and instructs them on where to file the documents (i.e. at which Court, the room number and the person to file the documents with). On the court date, the Plaintiff appears before Court and the matter is heard. Once the Decree of Divorce is issued, no further Court appearances are required and the instructions contained in the Decree of Divorce must be followed.
How does child maintenance work?
Every Parent is legally required to pay Child Maintenance until their Child is 18 years old. Should the Child not be self-supporting on their 18th birthday the Parent is then required to continue paying until the Child can support herself/himself.
Child Maintenance is payable in proportion to the Parents’ incomes, and include all costs for raising the Child. The first step is to calculate the actual costs (including housing, food, educational & medical expenses, etc.)
Consider the below example: (simplified)
Cost of raising Child R 5,000
Parent 1 Income R 20,000
Parent 2 Income R 12,000
Parent 1’s shares of Expenses 62.5%
Parent 2’s shares of Expenses 37.5%
Parent 1’s total Contribution R 3,125
Parent 2’s total Contribution R 1,875
Any expenses of the Child at both Parents’ houses are then calculated and factored into the required Child Maintenance payments.
Do I have to pay Spousal Maintenance?
The mutual duty between spouses to maintain each other usually ends when the marriage is dissolved – unless certain factors apply which demand otherwise.
If only one of the spouses was the breadwinner, the Court may award Spousal Maintenance to them to either maintain the standard of living to which they had become accustomed.
Here the Court will take into consideration factors like:
- Assets obtained from the Divorce
- Ability to re-enter the job market or generate an income
- Age and Health
- Reasons for unemployment if the person was not working for an extended period during the marriage
- Duration of the marriage
- The Court may decide to award Spousal Maintenance for a limited period of time to enable a spouse to re-enter the job market.
Do both parents have Parental Rights and Responsibilities towards minor children?
In terms of the Children’s Act 38 of 2005, Parents have the following rights and responsibilities towards their Children:
To Care for their Child, to have regular Contact with their Child and to maintain a meaningful relationship, to act as Guardian of the Child and to contribute in respect of Child Maintenance.
What is Mediation?
Mediation is a voluntary process of structured negotiation between two or more Parties that enables the Parties to resolve any differences and arrive at mutually acceptable solution to a legal problem. Because the solution is designed by both Parties, the chances that one of the Parties will default or go back on the agreement are substantially lower.
At the end of the process, the agreement between the Parties is made an Order of Court. While we allow space for the ‘soft’ issues in a confidential environment (as opposed to Court), it is not a form of counselling. Find out why no fewer than 44 of our country’s laws have been updated in recent years to accommodate Mediation as a critical component of the Legal process.
Children and Divorce
“Children never get over divorce. It is a great loss that is in their lives forever. It is like a grief that is never over.” (Steven Earll, August. 2001)
A child has a strong belief that there is only one correct family structure – and that is mom and dad being together. Any other arrangement contradicts this belief and is a betrayal of their basic understanding of life. Children (of any age) view their parents as supernatural beings with powers to fix anything, work through any problem and take care of them. Divorce shatters this belief in a child.
For all children, their parents’ divorce colors their view of the world and relationships for the rest of their lives.
Fact: 50% of marriages in South Africa end in a divorce.
Divorce affects not only the adults who make this choice but the children as well. Children need to feel loved, worthwhile and secure but during divorce, parents trying to deal with their own emotions often do not have the energy to provide this.
Talking to children about divorce is very difficult. Children often believe they are at fault and the cause of the divorce.
The following tips might help couples who consider divorce:
1. Don’t wait until the last minute to tell your kids. Divorce seemed to be the most traumatic on those children whose parents were not in a high -conflict marriage. The divorce catches them totally by surprise.
2. Tell your child about the divorce with your spouse – if possible.
3. Keep it simple and straight forward, without mud slinging or information that could traumatize the child further.
4. The child needs to hear and be reassured that the divorce is not their fault.
5. A child needs counselling to work through emotions triggered by the news.
6. Reassure the child unconditional love and caring will still be giving by both parents.
7. Never discuss your partner’s faults and problems with a child.
8. Be on the lookout of signs of distress in a child and provide help if so.
Signs of distress can be:
Regression to earlier development stages , anger, disinterest in activities, bed wetting, changing eating patterns, withdrawal, school work suffering, being uncooperative.
Questions kids might have:
• Where am I going to live?
• Do my friends know?
• Will I have to change schools?
• Is the divorce my fault?
• Will I have two houses and two bedrooms?
• Can I bring my parents back together?
• Do my parents still love me?
• I feel so embarrassed- how do I face the world again?
• I am so angry at my parents – may I be?
• I am shocked – how can they do this to me?
The Emotional Effects of a Divorce
A divorce may be an emotionally draining process and these steps can help you to recover.
During your divorce, you may experience many emotions. You may not experience all of these emotions, but get help from a counselor to help you work through them.
During this stage, you may deny what has happened to you and pretend to be “fine” or believe that you are “okay”.
If you have bottled up your feelings, you’ll experience anger. This stage often follows denial as you begin to realise what has happened. You may blame your partner or be angry at yourself.
“If only I could go back and do that differently”. These feelings leave you feeling guilty as you may wish you had done things differently.
This is a dangerous stage and can last for months or years. You can lose all hope and feel that there is no point to life.
When you accept things, you will be able to move on. This only happens after you have received help.