Reaching a settlement agreement out of court can mean the difference between a speedy divorce process and a lengthy drawn out affair. Unfortunately, most people going through a divorce are not able to reach a settlement on their own due to the high emotions that are associated with the breakdown of a marriage. It goes without saying that if a couple could not agree on being married then they will find it very difficult to agree on how that marriage should be dissolved.
This is why many divorce attorneys offer mediation services to assist couples in reaching a settlement agreement more amicably. The settlement works in regards to the assets, liabilities and other issues of value that were accumulated during the marriage and now need to be split equably in accordance with divorce law. This split needs to occur in accordance to the way in which the marriage was structured in the first place.
The existence of a pre-nuptial agreement signed by the two parties before getting married often makes a divorce settlement much simpler as the terms of the division of assets and liabilities has already been determined. In cases where there is no pre-nuptial agreement, the couple are considered to be married in community of property and hold an equal share in all obligations as well as benefits that were created during their marriage and are subject to divorce law.
The Divorce Act in South Africa
The Divorce Act dictates how assets and liabilities are to be split amongst two parties who have been deemed to be married in community of property. It stipulates the rights of each person within the marriage and how a settlement agreement should be structured. Of course, with the assistance of a divorce attorney and mediation the settlement agreement can deviate from the law as long as each party is in agreement with the precepts.
However, in cases where no settlement agreement can be reached, the courts have the duty to determine the division in accordance with the Divorce Act in South Africa. This is not always as simple as a 50/50 split as there are specific aspects that are unique to each divorce that the court will take into consideration. For example, a housewife who has not worked for a number of years may receive spousal maintenance over and above what is deemed to be a fair division of assets and liabilities.
A custodial parent may also be awarded the marital home so that he or she can continue to care for the children in the means that they have become accustomed to even if this means that the split is not 50/50 as dictated by the Divorce Act in South Africa. There are even some cases where one party will benefit more from the division due to the other party being responsible for the breakdown of the marriage. Factors such as these make it all the more important to try and reach a settlement agreement out of court so that you have more control over how the dissolution of a marriage will affect your future.