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10 Frequently asked questions about DIVORCE...

divorce 10 questionsWalking down the aisle no bride or groom can or will take into account or consider the fact that they might become part of the statistics surrounding the dreaded “D” – word, DIVORCE...

The reality of it all is that 1 out of every 4 marriages end up in the Divorce Court. Most parties don’t know their rights when it come to this point and in light of this I provide you with the 10 most frequently asked questions asked by my client’s when they institute divorce proceedings and my take on the most relevant answers to put the client’s at ease.

QUESTION 1:

WHAT DOES IT COST TO GET DIVORCED?

This depends on whether your divorce is unopposed or opposed.

UNOPPOSED DIVORCE:-

When a divorce is unopposed it means that both parties have consensually agreed on the “terms and conditions” o n which the divorce will be made a final order of court. 

Typically a settlement agreement will be drafted in which the division of assets are clearly stipulated and the rights and responsibilities of the parties in respect of minor children are stipulated.  By the nature of aforesaid an unopposed divorce is much quicker and most definitely more cost effective.

OPPOSED DIVORCE:-

A divorce is opposed when the parties cannot agree over certain aspects, whether it be the division of their assets or the amount of maintenance payable towards the minor children.  In this instance, it is impendent of a judge to give judgment in respect of the unresolved issues between the parties.  The costs of an opposed divorce can be thousands of rands and it is a much lengthier process than that of a unopposed divorce.

QUESTION 2:-

CAN I REQUEST THE OTHER PARTY TO CONTRIBUTE TOWARDS MY LEGAL COSTS AND MONTHLY MAINTENANCE PRIOR TO THE DIVORCE BEING FINALISED?

Of course an interim contribution towards legal costs and maintenance can be seeked prior to the divorce being finalised.  In the High Court, Rule 43 of the Uniform Rules of Court specifically provides for this interim relief and in the Regional Court, Rule 58 of the Magistrate’s Court Rules provide for same.

QUESTION 3:-

HOW LONG DO DIVORCE PROCEEDINGS LAST?

UNOPPOSED DIVORCE:-

Four to Six Weeks

OPPOSED DIVORCE:-

It can take anything from one to three years.

QUESTION 4:-

HOW DOES MY MARRIAGE REGIME (THE WAY I AM MARRIED) INFLUENCE THE DIVISION OF ASSETS?


MARRIAGE IN COMMUNITY OF PROPERTY:-

The joint estate (assets minus liabilities) as at the date of divorce is divided equally between the parties.  Bequests, gifts and donations are excluded from this division.

MARRIAGE OUT OF COMMUNITY OF PROPERTY:-

The assets between the parties get divided as per their Anti-Nuptial Contract.  In some instances where the parties were married to each other prior to 1 November 1984, the assets must be divided equally between the parties in terms of Section 7(3) of the Divorce Act, as this was prior to the accrual being instituted.  

Were parties got married after 1 November 1984, out of community of property without the accrual, neither has a claim against the assets of the other party, the wife only has a spousal maintenance claim.  

Were the accrual is included in the marriage regime, the party with the smaller accrual will be entitled to half of the difference on the various accruals.

QUESTION 5:-

AM I ENTITLED TO MAINTENANCE?

Our law is in favour of the “cleanbreak—principle” – this means that after a divorce the parties must be economically independent from each other.

The Divorce Act however clearly provides for courts to order one of the marriage partners to pay maintenance towards the other partner.  The amount of maintenance payable is ordered taking into account what the age of the party is, the duration of the marriage and the standard of living provided before the divorce.  Each parties’ contribution towards the disintegration of the marriage is also taken into account.

QUESTION 6:-

HOW DO YOU CALCULATE MAINTENANCE TOWARDS MINOR CHILDREN?

A minor child is entitled to a reasonable amount of maintenance towards, clothing, housing, medical care, education and relaxation.  Each parent has the responsibility to maintain their child within their financial means, irrespective of whether the minor child has been adopted, born in or out of wedlock or in your first or second marriage.

QUESTION 7:-

CAN I CLAIM FROM A THIRD PARTY WHO IS THE REASON FOR THE DIVORCE?

Our court’s view is rather that of an irretrievable breakdown of the marriage than placing the blame on a third party.  This said, you can however claim damages from a third party with whom adultery was committed.

QUESTION 8:-

WHO GETS THE MINOR CHILDREN?

This decision is made by the court only in instances where the recommendations, whether agreed upon by the parties themselves or by the Family Advocate, renders to be in the best interest of the minor children.  As the upper guardian of all minor children in South-Africa, the court takes its responsibility towards all minor children very seriously.  And therefore only the most suitable parent will be awarded primary residence of the minor children.

QUESTION 9:-

CAN THE MINOR CHILDREN DECIDE WHERE THEY WANT TO LIVE?

In terms of the Children’s Act, the views of the minor children can be taken into account once they have reached a certain age of maturity.  This age is specified in the Children’s Act, as children’s stages of maturity vary, but a guideline of the age of 13 is used.

QUESTION 10:-

WILL THE DIVORCE HAVE AN IMPACT ON OUR STANDARD OF LIVING?

This is inevitable.  As the logical assumption around this question is that two households must be upheld with the same income that was used to only uphold one household.

WRITTEN BY
SUENÉ MEYBURGH

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