How the Divorce Process Works in South Africa, and Your Best Course of Action
Within South Africa, divorce is a standard and straightforward process, but the emotional, mental, and financial consequences are usually tremendously complex. The route a separating couple opts to take during proceedings is important too, as it can mean the difference between a long-winded legal battle and a simple matter resolved in a few weeks. For this reason, it is always recommended that divorcing couples seek professional legal assistance. Here at Riëtte Oosthuizen Attorneys, we keep our clients’ best interests at heart and assist them with all types of divorce proceedings as well as guidance when it comes to intricate matters such as child custody and division of assets.
What Is Required Before a Divorce?
Long and contentious divorces have a negative impact on all parties involved – even children and surrounding family members. It is an emotionally charged time that is, for many people, traumatic. Rebuilding life after divorce is possible, but the longer the proceedings are drawn out, the harder it might be to recover financially and emotionally. Before a divorce is granted by the courts, there are a few matters that must be handled sufficiently. Ideally, these issues would be settled upon by both parties, but this is often not the case. They are usually the most complex and difficult facets of divorce that one must navigate, including:
- Child custody: The question of child custody and access arrangements must be dealt with. The court is also within its full right to restrict one parent’s access to the children if it is believed that contact with said parent is not within the children’s best interests. Because legal separation is a harrowing experience for the children involved, it is essential that the matter be treated with sensitivity. Issues of parental rights and responsibilities, residence, contact, child maintenance payments, and care must all be resolved as soon as possible to avoid the children being caught in a tug-of-war between their parents.
- Assets: The division of assets and property must be agreed upon before the divorce settlement goes through. The division of assets is usually dictated by the legal agreements at the time of marriage. Financial matters can become complex when factors like businesses, pension funds, retirement annuities, and movable assets are fought over. Traversing such involved legal matters is always easier with the help of professional divorce attorneys.
- Other factors: Some of the other important issues include real estate, tax issues relating to assets, debt and liabilities, child abduction, parental alienation, and even inter-country matters.
There Are Three Types of Divorces
Before gearing up for a legal battle and even selecting divorce attorneys with whom to partner, it is vital to understand that there are three types of divorce in South Africa. Each of these proceedings works differently, and the duration of your divorce as well as how much it will cost will depend upon the type of divorce both parties pursue.
A law firm or professional divorce attorneys of integrity will work with their clients towards the outcome that is the least emotionally and financially draining. This is why choosing your divorce attorneys with care is so important. In the end, a smooth transition from married to unmarried is ideal, as it means the family unit as a whole (whether separated or still in close contact) can successfully move on with their lives and look forward to a happier future.
- 1. Uncontested Divorces
The first type of divorce in South Africa is an uncontested divorce. This means it is a legal separation to which there is no objection. This is, by far, the fastest and most cost-effective way for a couple to split, and parties who manage to navigate it successfully leave behind the least collateral damage. In this type of divorce, separating couples work together to come to the terms of the settlement and make compromises where needed. Here, an impartial and unbiased attorney can oversee the proceedings and draft the settlement agreement which both parties then sign.
Under uncontested proceedings, there are do-it-yourself (DIY) divorces that can happen without the help of attorneys. This is obviously one’s cheapest option but not necessarily the wisest. Legal representation offers separating couples protection in several ways and going at the process alone might mean unnecessary and costly mistakes get made.
There are also default divorces that are granted by a court when the spouse who receives a court summons does not respond. It is always a better idea to ensure your spouse has every opportunity to respond by way of a notice of defence, or they could always later try to get the divorce set aside by giving the court a valid excuse for missing the deadline to respond.
- 2. Mediated Divorces
Mediated divorces can create a lot of turmoil and stress, as the couple hires a divorce attorney or professional legal mediator to help them agree to the terms of the settlement. This type of divorce includes a lot of back-and-forth negotiation, and differences must be set aside to ensure the process moves forward successfully. Two co-mediators are also possible, where one handles the legalities of the proceedings, and the other is a mental health practitioner. While they can be long and drawn out, mediated divorces are still less expensive than contested divorces, and still offer the chance for a favourable outcome for both parties.
- 3. Contested Divorces
There are various stages to contested divorces, including pleadings, application for the trial date, the discovery of documents, pre-trial conferencing, and eventually, the trial itself before judgment is passed. Contested divorces can continue for years on end, depending on how quickly spouses can come to some form of agreement. Contested divorces often require repeated court appearances and high legal fees due to the lengthy process. They can also be severely emotionally damaging for clients, their children, and their close family members. It is always best to avoid a contested divorce where possible.
Divorcing one’s spouse is a challenging process for anybody to go through, and finding divorce attorneys who are compassionate, attentive, and knowledgeable in their field of expertise is an invaluable form of support. Here at Riëtte Oosthuizen Attorneys, we have been helping clients fight for their rights and wellbeing since the year 2000. As experienced and respected legal experts, we understand the emotional complexities involved in a divorce, and we can help you make sense of your proceedings, whether it includes mediation or litigation.