The ins and outs of divorce

So your relationship is dead and you have decided to bury it. Where do you start? Here's some advice on how to go about it legally.

The dissolution of a relationship is always difficult. As part of our series on How to handle separation we've spoken to two different divorce lawyers.

According to Cape Town attorney Penelope Meyer you can get divorced in two different courts. For a High Court divorce you will need an attorney, but the process is usually quick.

If you want a cheap divorce and you don't mind waiting then you can go to the Southern (Family) Court which does not require you to have an attorney.

Penelope also adds that another alternative in divorce is: "if the divorce is relatively amicable but there is some disagreement on division of assets, maintenance, visitation rights etc you could consider mediation.

Both parties will then go to an attorney specializing in mediation, who will attempt to find a settlement between the parties. This lawyer will represent both parties, but usually will place an emphasis on protecting the rights of the minor children, if any."

What will happen to my financial position?
We've all heard the horror stories about divorce and separation. These days the courts will try to protect the vulnerable partner. Nelia Wessels, a divorce attorney from Macrobert Inc., talks about maintenance:

"A person does not automatically qualify for maintenance. If there is a major difference in income between the two partners the court may award maintenance for the person with the lower income.

If you have not been working during the marriage and start after the divorce the court may award rehabilitative maintenance to help you get on your feet financially. Interim maintenance will support you during the divorce proceedings if you have no other income."

The division of assets (money and property) is usually worked out according to your marital contract.

There are three types of marital contracts:

  • marriage in community of property (which means you can get between 0% – 50% of the assets.)
  • marriage out of community of property (each partner has own assets, bank accounts and property.)
  • marriage out of community of property with the accrual system (only the assets that have been accrued since the beginning of the marriage are divided between partners.)

    If you're not married you will have to convince the court that you've lived a shared life. In South Africa the only common law marriages that are recognised are customary and Muslim marriages.

    Thus for long term relationships it is always best to have some sort of legal agreement. Penelope Meyer also adds that parties living together need to have an agreement in writing if they acquire any joint assets as to how those assets should be dealt with if they split up. If not, do not despair. Contact a lawyer and find out what options you have.

    Protecting your children
    Penelope Meyer explains that when minor children are involved, the Family Advocates Office has to be informed. "You need to supply them with the information about where the children will live, who will care for them, how they will be supported financially etc.

    If you are fighting about access or if you are worried/apprehensive about your kids living with your partner, then you can appeal to the Office for help. They will investigate the situation and make recommendations to the court.

    Also, she asserts that clients cope best and are able to make more balanced decisions if they do go for some counseling to help them through it. You can approach organizations like FAMSA in this regard if you can't afford a private therapist. For more information on this aspect, see our article on How to handle separation: The emotional stuff.

    Protecting yourself
    Because the dissolution of a relationship is such an emotional ordeal, women often allow themselves to be browbeaten in order to just "get it over and done with".

    Don't rush things and don't let yourself be bullied. Once you've rejected maintenance you can never go back, even if your position changes.

    Nelia Wessels warns women who think of moving out of the house. "Although this does not affect the situation legally it does have a huge practical impact. It will be much more difficult dividing possessions etc once you've moved out. Go see a lawyer before you separate to work out what your tactics will be."

    She also advises that it may be possible to come to an amicable settlement if the relationship is friendly and the assets small. In most cases, however, it's probably wise to play it safe and to get a lawyer.

    Do you have a story you would like to share or do you have any advice for other readers? Please add your comments in the box below.

    - Women24

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