Your marriage is on shaky ground, and you are considering divorce. You’ve done a bit of research into the process, and now you’re more confused than ever
What is mediation? What is interim maintenance? How do you know what you need and what you are entitled to? How much does it all cost? How long does it take?
The answer to these last two questions depends very much on the type of divorce, so let’s look at the terms.
Contested or uncontested divorce
If you and your spouse can’t agree on various terms of the divorce, such as maintenance, division of assets and child care, your divorce will be contested.
In a contested divorce you appear in court, sometimes repeatedly, and the court decides the terms of the divorce. This can result in very high legal costs and emotional distress, and can drag on for three years (or even longer) before resolution.
An uncontested divorce is the quickest and least expensive option and minimises emotional stress to family members. In an uncontested divorce you and your spouse work together to agree maintenance, division of assets, child care and contact, and other important decisions.
An impartial attorney can be consulted and appointed to represent you and your spouse and draft the official settlement agreement, which you both sign. It is then made an order of the court. Uncontested divorce proceedings may be finalised in a matter of weeks.
Mediated divorces cost more and take longer than uncontested divorces but less than contested ones. In this type of divorce you employ the services of an attorney and/or professional mediator to help you negotiate and reach an agreement.
Mediators are impartial trained professionals skilled in helping couples set aside their short-term differences and focus on reaching a reasonable settlement that will allow them to move on and build a new future. In most cases, mediators are appointed by the attorney who provides legal advice during mediation.
Once the mediator helps you reach an agreement, your attorneys can draft the official settlement agreement. You both sign it and it becomes an order of the court.
Mediation can dramatically reduce the cost of contested divorce proceedings and mediated divorces are often finalised in three months
Child custody and access
Confusion around these terms is understandable, as the terminology has changed over the years. Custody is now called “care”, and access is referred to as “contact”. This reflects a move away from viewing children as the property of the parents and towards an approach that puts the interests of the children first. However, the terms “custody” and “access” are still widely understood, and there are different types of custody, which we explain below.
In a marriage you share custody as parents. When you divorce, custody is normally granted to a single parent, with reasonable access awarded to the other parent. You may agree instead on joint (shared) custody.
Types of custody
Custody battles are a common source of delay and discord in negotiating the divorce agreement. The days of custody automatically being granted to the mother, with visitation rights to the father, are gone. Parents must work out a settlement that suits all parties, and the Children’s Act is very clear that the interests of the child must be the overarching consideration in any care and contact arrangement.
Legal custody is the right to make decisions about your child’s upbringing, for example, their schooling, religious practices and health concerns. Generally both parents have legal custody, unless there is a reason not to grant this (history of physical abuse or substance abuse, etc.)
Physical custody refers to the child’s living arrangements:
In sole custody they live with one parent most of the time while the other parent has contact rights.
Joint custody means that the child’s residential time is divided equally between both parents. An example arrangement would be 2-3-2, i.e. two days in one home, three in the other, then two in the first location. The time division can also be one week in each home, but a week is a long time to go without seeing a parent (or one’s child).
In practice it is usually much more manageable to have a primary residence and regular contact with the non-custodial parent.
Custody is not the same as guardianship. South African courts normally grant guardianship to both parents as part of the divorce settlement. Guardianship is an adult’s right and responsibility to:
- Manage a child’s interests
- Manage any assets or financial aspects of the child’s life
- Assist the child in legal or contractual situations
- Give consent to the child’s medical treatment, marriage or adoption
- Give consent for the child to travel out of South Africa
In certain very specific circumstances, the court may grant sole guardianship to one parent or to someone who is not the biological parent.
In a contested divorce or where parents cannot agree on the care arrangements for children, the court may require a parenting plan. But it’s a good idea even when the divorce is amicable. The parenting plan defines the roles and powers of each parent. These may be equal (co- or shared parenting) or one parent may have a greater share of the care responsibility.
A parenting time schedule is the basis for the plan. Other important details include school holidays and events like Christmas. Parenting plans are designed to be reviewed and revised. It’s a good idea to incorporate a review date or interval in the parenting plan itself.
The Family Advocate is a state official who assists divorcing parties to reach an agreement on disputed issues, namely custody, access and guardianship. If they are unable to reach an agreement, the Family Advocate reviews the circumstances in terms of the best interests of the child and makes a recommendation to the court with regard to custody, access or guardianship.
Under South African law, children have the right to receive financial maintenance. Both parents are required to provide financial support for a child. Maintenance amounts must be negotiated and finalised according to the Maintenance Act 99 of 1998 and the Children’s Act 38 of 2005.
The amount paid to the primary caregiver is based on the monthly earnings of each parent and the cost of the child’s education, care and upbringing. Maintenance orders are orders of the court. Failure to meet their obligations is a criminal offence.
Rule 43 maintenance
Where a divorce is contested and drags on, one or other spouse may apply to the court for a Rule 43 interim maintenance order. Rule 43 maintenance is designed to ensure interim arrangements for a number of issues, not only financial. It can provide:
Interim maintenance for the minor children and in some cases one of the spouses (e.g. if one is financially dependent on the other) until the divorce is finalised.
- A contribution towards legal costs
- Interim care and contact with the child/children
- Interim custody of the child/children
A Rule 43 order provides an immediate, interim facility to prevent potential financial hardship or to ensure custodial arrangements are suitable and children are not placed at risk, while waiting for a divorce to be finalised. It may not be appealed.
Okay, now you understand what all the terms mean, but you’re still curious about what will actually happen. The first step is to consult a family lawyer. If you and your spouse are in complete agreement about everything, you can handle your own divorce.
There are many websites that describe the process. However, there are factors you might not have considered, such as pension splitting. Certain issues, undisclosed or unresolved at time of divorce, can come back to haunt you later in life. DIY divorce can be a false economy. Sound legal advice will protect your interests for the long term.
The divorce procedure in South Africa consists of the following steps:
Arrange a consultation with your divorce attorney. They will ask you questions about your life, to assess if the divorce will be opposed or unopposed by your future ex-spouse.
Draft a divorce summons – this is best done by specialist divorce attorneys to avoid issues later.
The summons is issued by the court on behalf of the person launching the divorce action (called the Plaintiff). One of you has to initiate the action, even in an uncontested divorce. South Africa does not have “no-fault” divorce. Let’s assume you are the plaintiff.
It includes details of both parties, where and when you were married, and what you want the divorce order to determine. This may include details of distribution of wealth and debt, maintenance payments, and issues of child care and contact. If this is not done correctly and does not contain the information as required, this can be costly in time and money.
The summons is delivered by the Sheriff to your spouse (called the Defendant).
The defendant responds to the contents of the divorce summons. This is called a plea.
Together with the plea, the defendant delivers a counterclaim document, which sets out what they want the divorce order to determine. (If the defendant does not deliver a plea and counterclaim then the court may, after a set period of time, issue the order of divorce according to the conditions requested in the summons. This is known as an uncontested divorce in South Africa.)
You may now, within a set period of time, deliver to the court a document responding to the defendant’s plea.
This is called the plaintiff’s plea to the defendant’s counterclaim and sets out your response to the defendant’s plea.
In most cases this is the end of the plea part of the divorce process. These documents are together referred to as the pleadings.
You now apply to the court for a trial date
This date varies according to the type and location of the court chosen. If the divorce is filed in the High Court, the court date may be a year or more in the future. Divorce proceedings filed in a Magistrate’s Court receive earlier court dates depending on how busy the court is.
Under South African law, all documents to be used by either party in a trial must be revealed to the other party before the court date. This is called a discovery process.
After the pleadings close, each party’s divorce lawyer will request the other party to disclose and provide copies of all documents they intend to use to support their arguments in court. These include a variety of financial documents such as bank and credit card statements, share certificates, documents proving ownership of assets or debt and more.
In some cases, the divorce attorney may have to issue summons to companies or institutions to deliver required documents.
In cases where you and your spouse do not manage to reach a divorce settlement agreement the divorce will go to trial and the court will decide who gets what.
Picking up the pieces
Don’t underestimate the impact of divorce on your emotional state. Many recently divorced people experience sadness and depression both during and after the divorce proceedings, a natural response to a distressing experience. If you are feeling overwhelmed by the feelings associated with your divorce, seek out a professional counsellor, psychologist or therapist to help you come to terms with the grief and anger you are experiencing. Divorce is a form of loss, and grief is a normal reaction to loss.
If you need us, we’ll be here
Whatever these unprecented circumstances invoke in you, we are family lawyers who are here to help. If you decide divorce is the best thing for your family, or if you want to revisit your matrimonial regime and consider a post-nup, contact Simon on 086 099 5146 or email email@example.com.
SD Law Attorneys aka Simon Dippenaar & Associates Inc., is a law firm based in Cape Town, of specialised divorce lawyers and family attorneys, best known for their high EQ win-win resolutions to divorce. SD Law will represent your best legal interests with uncompromising dignity.