Divorce
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An uncontested divorce is one in which you and your spouse work together to agree on the terms of your divorce. This is probably the easiest; efficient and least expensive form of divorce.
When both parties agree, prior to initiating divorce proceedings, for example, on how they wish to divide their assets and if there are children involved, which parent will be the primary custodian parent and which parent will enjoy contact rights and what they maintenance requirements of the children are, then both parties consult with us together.
We will draft a written settlement agreement, which should be signed by both parties. Only one party must appears in Court, to make the aforesaid written settlement an Order of Court.
Parties must be mindful that, where children are involved, the relevant Family Advocate is required to endorse the settlement and if not endorsed, state the reasons why. It is a critical consideration, since the Court has a discretion whether to grant or dismiss a divorce action, despite the parties reaching a settlement. It is important to obtain proper legal representation, to prevent obstacles; deal with obstacles, as and when they arise and ensure that the parties rights are protected.
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In the event where parties cannot agree on the terms of divorce, for example division of their assets and when minor children are involved, issues relating to parental rights and responsibilities of the parties, then a divorce is contested.
It is then left to the Court to decide how to deal with the issues in dispute.
A contested divorce may take anywhere between 6 (six) months to 2 (two) years to finalize, depending on if the parties can settle in the meantime or not. A contested divorce can become very costly.
Contested Divorce Process:
A contested divorce proceeding consists of various stages. Below is a brief outline of the process followed:
The first step in the process is issuing and serving of summons on a Defendant.
The parties will exchange various documents referred to as Pleadings and / or Notices.
There is a possibility of interlocutory applications, such as the Rule 43/58 applications (referred to elsewhere on this page), exceptions, applications to compel etc.
Once the Pleadings are finalized the parties will Discover evidence and documents to be used at trial.
There are various other steps, which will not be elaborated on here, that can be taken during the various phases of the proceedings.
A Pre-trial conference should be held.
Once the Court is satisfied that the parties are ready for trial, a trial date will be allocated.
Trial and Judgment.
Appeals or Review Applications to a Full Bench of Judges or even a higher Court, such as the Supreme Court of Appeal or Constitutional Court (should there be a cause for Constitutional jurisdiction to be invoked).
Taxation of Legal Costs.
Execution of Judgment.
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Divorces are, in most instances, extremely expensive and unaffordable, should you require appropriate legal representation.
In most instances divorce and other matters can be settled amicably.
We assist with uncontested divorces and assist parties in finding each other through written settlements that is an expedient manner to finalize divorce proceedings.
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According to Rule 43 of the Uniform Court Rules and Rule 58 of the Magistrate Court Rules, litigants in divorce proceedings can apply to the court for an order granting interim relief pertaining to interim matrimonial matters.
This Application can be used to obtain an order, pending finalization of divorce proceedings, relates to the following:
interim establishment of parental rights and responsibilities, including inter alia determining the parties’ contact rights;
interim maintenance for minor children and/or one of the parties; and/or
One of the parties to the divorce can get help with legal costs from the other party.
The party seeking an interim Order will depose to an affidavit, before a commissioner of oaths, which will then be lodged at Court and served on the other party. The other party must then respond to the Application by way of affidavit, if they wish to contest the matter.
Unlike other applications, only two (2) affidavits are required to argue the matter in Court.
This Application can only be initiated after the divorce proceedings was initiated through issuing and serving Summons.
This Application is available to both the Plaintiff and Defendant. In this premises, even a counter-application may be initiated by either party.
If an order is obtained in accordance with the Rule, it can also be amended, under the circumstances outlined in the Rule.
Maintenance
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Child maintenance is the obligation to provide another person, for example a minor, with housing, food, clothing, education and medical care, or with the means that are necessary for providing the person with these essentials.
All parents regardless of the nature of the relationship between parents are required by law to provide for their child.
There are many misconceptions regarding the law surrounding child maintenance. For example most people believe that you are only required to pay child maintenance until a child turns 18, however the real case is that you are required to pay maintenance until the child is considered able to support themselves.
Child maintenance refers to the legal system in place that enforces the support of a parent who is not the primary caregiver of a child.
In addition to providing the child with adequate clothing, housing, dental care, and education, parents are responsible for maintaining their children.
Each parent must fulfil his or her obligation to maintain the child, according to his or her means and the child’s needs. If the child’s parents are unable to maintain their child, the child’s grandparents may have to pay for it.
If the child is under the age of 18 and their legal guardians aren’t living together, then the primary caregiver of the child, whether adoptive or biological, can request that child maintenance be paid by the other legal guardian.
If a child is over the age of 18 then they can personally claim for child maintenance from their guardians without the assistance of another guardian.
Child maintenance is regarded a serious issue. If a child does not receive sufficient financial support this can directly affect their livelihood and is considered a punishable offense by law.
The amount owed in child maintenance by a parent monthly is dependent on various factors determined in court.
This is determined by taking into consideration the reasonable needs of the child as well as the financial position of each parent.
Needs Of The Child: This includes the basic needs of healthcare, food, clothing and education. The cost of these are calculated to determine how much is required per month to support the child.
Parents Financial Position: The income and expenses of each parent will be determined and then the parent with the highest net income will be required to pay more maintenance. If a parent is deemed unable to financially support their child due to lack of income, then maintenance cannot be ordered. however, if that parent has significant assets, they can be used to pay maintenance.
Should a parent fail to pay the required maintenance agreed upon in the maintenance order, there are several steps of action that can be taken.
Firstly you are to report the parent to the maintenance officer. Once this is done one of the following may be done:
A person who didn’t pay child support might be subject to an ‘emoluments attachment order’. This means that the court will order the employer to take a specific amount from the person’s salary and send it to the child’s mother each month to cover child support.
Attachment of a debt owing to the person who failed to pay
Confiscation of the parents’ assets, where these assets will be sold and their profits to be used as maintenance for the child.
Lastly should all else fail the parent can be fined or imprisoned by the court.
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Spousal maintenance is a payment made by one spouse to the other during or after divorce proceedings.
The purpose of spousal maintenance is to help the receiving spouse maintain their standard of living after the divorce.
The amount of spousal maintenance is decided by the court and is based on a number of factors, including the length of the marriage, the financial needs of the receiving spouse, and the earning capacity of the paying spouse.
Spousal maintenance, also known as alimony, is a court–ordered payment from one ex-spouse to another. The spouse who pays is typically the one who earned more money during the marriage. The payments are meant to help the lower–earning spouse maintain his or her standard of living after a divorce.
The payments can be made for a set period of time, or they can be open–ended. Spousal maintenance is typically awarded in cases where there is a significant disparity in earnings between the two spouses. It is also more likely to be awarded if the marriage was a long one, or if the spouse who is requesting maintenance is unable to support himself or herself due to an illness or disability. In most cases, spousal maintenance is tax–deductible for the payer and taxable income for the recipient.
A person is not automatically entitled to spousal maintenance, and they must prove their claim before a Court will decide what support needs to be paid and for how long.
The aim of spousal maintenance is to help the financially weaker spouse to become financially independent, or to help them to maintain the standard of living that they enjoyed during the marriage.
The following factors may be considered when making a spousal maintenance order:
The needs of the spouse who is unable to support themselves
The financial resources of the spouse who is ordered to pay maintenance
The couple‘s standard of living during the marriage
The age and health of the spouses
The duration of the marriage
The contributions each spouse made to the marriage, including homemaking and childrearing
The earning capacity of each spouse
The education and training of each spouse
The financial needs of any dependent children
Any other factor the court deems relevant
A person who wishes to apply for maintenance can do so at any Maintenance Court in the district where the person who applies for maintenance resides or works.
The length of time spousal maintenance lasts varies depending on the circumstances of the case. It may be paid for a fixed period of time, until the recipient spouse remarries or enters into a de facto relationship, or indefinitely.
Parental Rights and Responsibilities
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The primary purpose of a parenting plan is to provide stability and continuity for the children involved in a divorce or separation.
Children can experience a lot of emotional upheaval when their parents separate, and a well-crafted parenting plan can help to reduce the stress and confusion that can come with these types of changes in the family structure.
A parenting plan outlines the specific responsibilities of each parent and provides clear expectations for the children in terms of their time with each parent. This helps to ensure that the children have a consistent routine and are able to maintain relationships with both parents.
A parenting plan must include details on the children’s daily routine, such as sleeping arrangements, school schedules, and meal times. It should also outline the specific responsibilities of each parent, including who will make decisions about health care, education, and other important aspects of the child’s life. In cases where one parent has primary residence, the parenting plan should specify the conditions under which the other parent will have visitation rights and how these visits will be arranged.
It is also important to include a detailed communication plan in the parenting plan. This should specify how the parents will communicate with each other and how disputes will be resolved. This can help to prevent conflicts and misunderstandings, and provide a clear path for resolving disputes if they do arise.
The parenting plan should also address any special needs or circumstances that may affect the children. For example, if one child has a disability or requires special education services, the parenting plan should outline how these needs will be addressed and who will be responsible for ensuring that they are met.
It is important to note that a parenting plan is not a one-size-fits-all document and should be tailored to the specific needs of each family. The plan should be flexible enough to accommodate changes in circumstances, but also detailed enough to provide clear guidance for both parents.
Parenting plans are legally binding documents in South Africa and must be approved by a court. Once approved, they become part of a divorce settlement or custody order. This means that both parents are legally obligated to abide by the terms of the parenting plan. If a parent violates the terms of the parenting plan, the other parent may take legal action to enforce it. This can include seeking a court order to modify the parenting plan or seeking a change in custody.
A parenting plan is not set in stone and can be amended if circumstances change. For example, if one parent needs to move to a different city, the parenting plan can be revised to reflect the change in living arrangements. In some cases, the children may also grow and change, requiring the parenting plan to be revised to accommodate their changing needs.
Changes to a parenting plan should be made with the best interests of the children in mind. If both parents agree on the changes, they can draft a new plan and have it approved by a court. If they cannot agree, the court may need to intervene and make a decision. In such cases, the court will consider the best interests of the children, the terms of the original parenting plan, and the reasons for the requested changes arrangements.
It is important for both parents to seek legal advice when creating a parenting plan. A family law attorney can provide guidance on the legal requirements for parenting plans, help you draft a plan that meets the specific needs of your family, and ensure that the plan is in line with South African law. A lawyer can also assist in negotiating changes to the parenting plan if necessary and provide representation in court if necessary.
In conclusion, a parenting plan is a crucial aspect of family law in South Africa and can help to provide stability and continuity for children during and after a divorce or separation. It is important to have a well-crafted plan that outlines the specific responsibilities and rights of each parent and provides clear expectations for the children. It is also important to seek the advice of a lawyer to ensure that your parenting plan meets the legal requirements and is in line with the best interests of your children.
If one parent violates the parenting plan, the other parent can seek enforcement through the court system. This may include requesting a modification of the parenting plan or seeking a court order to enforce the existing agreement.
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Child custody matters are governed by various laws and legal principles that prioritize the best interests of the child.
Understanding the legal framework can provide valuable insights into the processes and considerations involved. Here are some key aspects of the legal framework for child custody in South Africa:
Children’s Act, 2005: The Children’s Act is the primary legislation governing child custody matters in South Africa. It outlines the rights and responsibilities of parents and other parties involved in custody disputes. The Act emphasizes the best interests of the child as the guiding principle in all decisions related to custody.
Constitutional Rights: The South African Constitution prioritizes children’s rights for their best interests in all matters. These rights include the right to parental care, protection from harm, and participation in decisions that affect them.
Mediation and Alternative Dispute Resolution: Consider mediation and alternative dispute resolution before resorting to litigation under South African law. Mediation allows parents to negotiate and reach mutually agreeable custody arrangements with the assistance of a neutral mediator. It promotes cooperation and collaboration, fostering a healthier co-parenting relationship.
Court Intervention: Parents without agreement may seek court intervention if mediation or alternative resolution fails. The court’s role is to determine the most suitable custody arrangement based on the best interests of the child.
Consideration of Factors: South African courts consider various factors when determining child custody arrangements. Factors include parent-child relationship, meeting child’s needs, child’s wishes (if appropriate), and ensuring stability.
Ongoing Review: Child custody arrangements are not set in stone. The court recognizes that circumstances may change over time, and it allows for the review and modification of custody orders if it is in the best interests of the child. This flexibility ensures that custody arrangements can adapt to the evolving needs of the child and the parents.
Types of Child Custody:
Full Custody: Full custody grants one parent exclusive rights and responsibilities for the child. Noncustodial parent has visitation rights, while major decisions rest with the custodial parent.
Joint Custody: Joint custody involves shared parental rights and responsibilities for the child. Both parents participate in decision-making and play an active role in the child’s life. Joint custody requires effective communication, cooperation, and collaboration between the parents to ensure the child’s well-being.
Split Custody: In split custody, parents divide multiple children from the same family. Each parent retains full custody of at least one child, based on the best interests of each child involved.
When deciding on child custody matters, South African courts consider several factors to determine the best interests of the child. These factors include:
Parent-Child Relationship: The court evaluates the existing bond between each parent and the child. The aim is to ensure the child’s emotional, physical, and psychological well-being.
Primary Caregiver: The court takes into account the parent who has historically been the primary caregiver and has provided stability, support, and a nurturing environment for the child.
Child’s Wishes: The court may consider the child’s preferences if they are of an appropriate age and maturity level to express their views. The weight given to the child’s wishes depends on their age and the circumstances.
Parental Capacity: The court assesses the ability of each parent to meet the child’s needs, including their financial, emotional, and physical capacity to provide a safe and stable environment.
Co-Parenting Skills: The court evaluates the willingness and ability of each parent to facilitate a healthy and cooperative co-parenting relationship for the benefit of the child.
Stability and Continuity: The court considers the impact of any proposed changes to the child’s living arrangements and strives to maintain stability and continuity in the child’s life.
In South Africa, the best interests of the child are paramount when making decisions related to custody. The court aims to promote the child’s well-being, safety, and development while considering the following:
Emotional and Physical Needs: The court prioritizes the child’s emotional and physical needs, ensuring they have a safe and nurturing environment that fosters their growth and well-being.
Education and Healthcare: The child’s educational and healthcare needs are carefully considered, aiming to provide them with access to quality education and necessary medical care.
Stability and Consistency: The court recognizes the importance of maintaining stability and consistency in the child’s life. It seeks to minimize disruptions to routines, schooling, and social connections.
Protection from Harm: The court places great emphasis on protecting the child from any form of abuse, neglect, or exposure to harmful situations.
Sibling Relationships: The preservation of sibling relationships is taken into account, as it is generally considered beneficial for the child’s well-being and emotional development.
Domestic Violence & Harassment
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Domestic violence applications are regulated by the Domestic Violence Act, 1998 (as amended) together with the Regulations promulgated thereunder.
Section 1 of the Domestic Violence Act describes, inter alia, various forms of domestic violence that are being committed on a daily basis in South-Africa.
The application is brought on a form that prescribed by the Regulations and requires the applicant to attach relevant evidence (such as photos, video and audio recordings) to the application. Too often, parties rush to Court, without the required knowledge and experience to conduct an application properly. Applicants are encouraged to first consult with a legal practitioner, prior to lodging a complaint, to prevent defective or meritless applications.
Once the application is lodged, a Magistrate will consider the application and either: 1. Dismiss the application (if it is without merit or defective); issue a Notice to Show Cause or grant an Interim Protection Order.
Criminal charges can also be initiated, in conjunction with the Application for a Protection Order, which is recommended.
Obtaining an Interim Protection Order is ideal, since the Applicant remains protected during proceedings until a Final Order is granted, which then takes the place of the Interim Order.
However, not all is lost if an applicant only receives a Notice to Show Cause.
Once either a Notice to Show Cause or Interim Order is obtained, same should be served on the Respondent and the parties must return on the return date contained in the aforesaid documents.
At the return date, the Magistrate will direct the parties of what to do next.
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Protection Orders relating to Harassment is regulated in terms of the Protection from Harassment Act, 2011 together with the Regulations promulgated thereunder.
The processes and procedures are essentially the same as those laid out for Domestic Violence matters. (Please see the link relating to Domestic Violence)
Marital Law
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Antenuptial contracts are also referred to as prenuptial agreements. The main purpose of the antenuptial contract is to protect both parties’ interests, should the marriage come to an end. It also negates the unintended consequences of a marriage in community of property, which could have severe negative consequences.
In the antenuptial contracts are drawn up and registered, keeping in mind the consequences of a possible future divorce or to protect the parties interests in the event of one party’s death.
An antenuptial contract is a contract entered into by a couple intending to get married. It can be used to protect assets and property or outline the responsibilities or expectations of each respective partner. Couples married under this type of contract are referred to as married out of community of property. If no such contract is concluded and registered, parties are referred to as being married in community of property.
This type of marriage contract allows for exclusion of property between partners. While antenuptial contracts are not necessarily required for a marriage to be valid, they do serve as a helpful way of outlining expectations in a marriage and detailing how a couple’s assets will be managed within the marriage or distributed in the event of death or divorce. It is often recommended that couples seeking to get married enter into an antenuptial contract to protect themselves and their future wealth.
Out Of Community Of Property With Accrual
Couples preparing to marry often favour a marriage in which each spouse retains ownership of their separate property but shares the wealth they build together.
Prior to the marriage, each spouse retains ownership of their property, but the accumulated wealth gained during the marriage is shared. This is called “equitable distribution” and is determined by the court, taking into consideration each spouse’s earnings, assets, and effort put into the marriage. It is important to note that in the case of a divorce, you give up the rights to your spouse’s assets. Equitable distribution does not necessarily mean an equal split of assets.
Out Of Community Of Property Excluding Accrual
An ANC is signed when you get married out of community of property. In the absence of an antenuptial agreement, the financial rules of marriage can be quite rigid and unresponsive to changed circumstances.
For example, if one spouse earns significantly more money than the other spouse and they are getting married, the spouse with lower earnings may not be able to collect spousal support during the marriage, even if they end up in a situation where they need it. Similarly, if one spouse has a significant amount of debt, that debt will likely become the responsibility of the other spouse during the marriage.
Married In Community Of Property
When you marry without an antenuptial contract, you are married in community of property which means everything you own on your wedding day is now shared between you and your spouse.
On top of all this, you are now responsible for each other’s debts as well. If one of you has a credit card with a balance on it, that debt is now shared. You now have joint responsibility for paying off that debt. If you are getting married without any type of contract, you are taking on significant responsibility that lasts for the rest of your life.
Anyone who wants to protect their assets or establish clear expectations for how assets and debts will be divided in the event of a divorce or separation should consider an antenuptial contract. This may include individuals with significant assets, business owners, or those who are getting married for the second time.
An antenuptial contract should be created well in advance of the wedding date to allow sufficient time for negotiation, drafting, and review by both parties and their respective attorneys.