My partner and I are considering a divorce
Life crumbles around people when their relationships start falling apart. Couples sometimes reach a point where they realise their marriage is over or, they are caught up in an ongoing dispute after their divorce. This can be a draining and traumatic event in one’s life. The intention is never to get married just to divorce later, or to keep on fighting after 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 or coaching. However, should a divorce be inevitable, speak to a mediator to facilitate an uncontested divorce. Under South African law one cannot prohibit a partner from approaching the court for a divorce, but 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 a divorce
Either of the parties need to prove to the court that the marriage has broken down irretrievably. The conditions for this might include among other things:
- 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 is the difference between contested and uncontested divorces?
A contested divorce typically is where the parties disagree on:
- With whom the children should live
- Contact with the children after the divorce
- Maintenance for the children or spouses
- Division of the communal estate
Contested divorces usually entail multiple court appearances which dramatically increase the cost to each of the parties.
Uncontested divorces are where the parties agree on all aspects and sign a divorce settlement agreement, which the court then incorporates into a Decree of Divorce. Costs are considerably lower, and the parties do not need legal representation.
At the end of the mediation process the mediator guides the parties on how to file for divorce without legal representation, or if the parties choose, assists in appointing a legal representative to file the case with court.
The parties appear before court as a formality but there is no trial. Once the Decree of Divorce is issued the matter is finalised and the parties are required to adhere to the court order.
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, where the children spend equal amount of time with both parents, subject to age considerations. A social worker may be appointed to compile a “Voice of the Child” report in this regard.
Should the parents not be able to agree, the court – as upper guardian of all minor children – will decide, usually on recommendation by the office of the Family Advocate. 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, write a parenting plan and in so doing, minimise 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. Usually 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. When needed, the services of an expert (financial / property / business / etc.) can be employed to this effect.
Do both parents have parental rights and responsibilities towards the minor children?
In terms of the Children’s Act 38 of 2005, parents have the following rights and responsibilities towards their child/ren:
- To care for their child/ren
- To have regular contact with their child/ren and to maintain a meaningful relationship
- To act as guardian of the child/ren and to contribute in respect of child/ren maintenance
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, parents are 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.) 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.
Why then mediate?
Consider the following:
- Mediation is informal, empowering, efficient, effective, and confidential.
- Parties have control over the outcome by being directly involved in negotiating their own agreement – No divorce settlement can be imposed.
- The process is less expensive than divorce litigation and takes less time because mediation that is used early in a dispute can help to reach an agreement more quickly than may be the case when pursuing the courts.
- Mediation can help to preserve relationships by helping participants focus on effectively communicating with each other as opposed to attacking each other and therefore less emotional damage on families.
- The Children’s Act 38 of 2005 makes it compulsory that all matters that involve children to be mediated. Lawyers have an obligation to inform their clients of the benefits of mediation. (Brownlee vs Brownlee, August 2009)
- Because it is voluntary, parties can withdraw at any time.
What is mediation?
Mediation is a voluntary and cost-effective process of structured negotiation between two or more parties. The process enables them to design a mutually acceptable solution that will resolve any differences to a legal problem without having to go to court or having a long drawn-out and costly litigation process.
At the end of the mediation process, the parties have the option of filing the divorce directly with court, or to have a third party legal representative file the divorce on their behalf.
Over 60 of our country’s laws have been updated in recent years to accommodate mediation as a critical component of the legal process.
How does mediation work?
- Mediation is a constructive, non-confrontational process where an impartial mediator assists the parties to reach an informed and mutually agreed settlement.
- Both parties have equal opportunity to tell their story, share their needs, interests, and thoughts and so come to a mutual agreement.
- The parties are guided through a structured process to come up with a better solution and agreement that either of them had thought was possible. It is a WIN-WIN.
- The process encourages teamwork to resolve disputes, and a spirit of cooperation that can set the stage for harmonious attitudes and civility in the future, for the sake of the children.
- Participating in mediation does not result in giving up any of your rights or putting yourself at any kind of legal risk.
- The settlement reached, can be made an order of Court. If no settlement is reached, the parties can start or resume with litigation.
What mediation services does iGrowth Studio render?
- Divorce settlement agreements
- Parenting plans
- Care and contact
- Parental rights and responsibilities
- Child maintenance
- Spousal maintenance
- Estate division
Visit our website for the full range of our service offerings:
What costs are involved?
Cost calculations can be done upon request.
What do I do next?
- Complete the Client Registration Form that will be send to you upon request
- Sign it, scan it, and email it to: firstname.lastname@example.org
- Do not make any payment prior to the receipt of an invoice
- Should you have any questions, please contact us