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The dissolution of marriage in South Africa is regulated by our Divorce Act and the Matrimonial Property Act. Divorce is notably one of the most difficult situations to navigate in life, owing to the emotional and psychological trauma which is suffered during these times as a result of the separation between spouses. As of recent there has been unprecedented efforts aimed at developing more efficient, inexpensive, and harmonious resolution of family disputes by means of alternate dispute resolution (ADR).
Divorce mediation in simple terms refers to obtaining all the relevant information, identifying the issues in dispute, negotiating the terms, and ideally reaching a successful settlement on the material terms.
Whilst Divorce mediation can be a very effective tool for mitigating conflict and legal costs of divorce, it may not work for all spouses specifically where there is a power struggle and/or power imbalance to be precise.
In terms of South African Law, both the High Courts and the Regional Magistrates Courts has jurisdiction to deal with divorce litigation. Aside from spouses dealing with negotiations in terms of maintenance, care and contact of the minor children they have to also consider the financial implications of dissolving their marriage and the proprietary consequences of divorce which include but are not limited to movable assets, household items, immovable property, motor vehicles, pension funds and retirement annuities, hidden interests, business interests, debts and the like.
An uncontested divorce process is the most streamlined, cost effective form of divorce and can be expedited more timeously provided that the spouses cooperate and agree on the issues of maintenance, care and contact of the minor children, the proprietary and patrimonial terms of the divorce.
At SMA, we pride ourselves on dealing with uncontested divorce proceedings by preparing the divorce settlement agreement in accordance with the spouses’ needs. We can assist with various aspects such as the endorsement of the pension fund, negotiating a suitable parenting plan that is in the best interests of your minor children, and we can also assist you in having the parental plan endorsed with the Family Advocate and/or made an Order of Court dependant on the circumstances. In uncontested divorce proceedings the spouses can jointly appoint our offices for assistance with the formalities. If the spouses, choose not to cooperate they will have to enter into contested divorce litigation and the court will adjudicate on the issues in dispute at trial which may be a very costly, lengthy and unpleasant exercise. Both contested and uncontested divorce proceedings commence by way of summons action. For further information and legal assistance contact our offices for an appointment.
Rule 43 of the Uniform Rules of the High Court and Rule 58 of the Magistrates Court Rules provide for interim relief pending finalization of the divorce proceedings. These interim applications are regarded as urgent and can be sought in respect of interim child maintenance, interim spousal maintenance, interim primary residence and access, legal costs. For further information and legal assistance contact our offices for an appointment.
Should either party wish to vary any term of the granted divorce order, the parties should make a variation application to the relevant Hight Courts or Regional Magistrates Courts outlining the reason for such application and should justify the variation.
Most divorce cases that are finalised in South Africa involve minor children and amidst the emotional turmoil and legal proceedings, parents need logical guidance for dealing with the restructuring of the family’s life, most importantly the care and best interests of the children.
Child maintenance in essence includes the provision of food, clothing, shelter, medical care, education and entertainment. In terms of the common-law maintenance for a child is payable until such time as the child becomes self-supporting. The amount of maintenance payable depends on the needs of the child and the financial means of the person or persons liable to pay such maintenance.
Spousal maintenance is monies paid from one spouse to another because of a settlement term in the divorce order. There are several factors that are taken into consideration when assessing spousal maintenance, the courts have discretionary power in awarding spousal maintenance by looking at the following criteria for Alimony in South African law which includes but is not limited to their standards of living before the divorce, the duration of the marriage, the spouses’ respective earning capacities, their financial needs and obligations, the existing and prospective means, each spouse’s conduct, the spouses ‘ages and/or any other factor, which in the court’s opinion should be taken into account.
It is best to contact a divorce Attorney to help you ensure that you get effective results from your divorce settlement. SMA is here to help you with any divorce and maintenance related issues.
A protection order is aimed at preventing the reoccurrence of domestic violence and/or sexual harassment by stating what conduct the alleged offender must refrain from doing.
As long as he/she complies with the protection order, the complainant’s interest will be safeguarded. However, If the respondent breaches any stipulation of the protection order, he/she may be arrested.
If the court is satisfied an interim protection order will be granted, and a return date will be given to the Complainant for the protection order to be made a final order this order is enforceable throughout the country.
In terms of South African Law an antenuptial contract is a document that, determines whether your marriage will exist out of community of property, with or without accrual system.
Contact SMA, for more legal advice on family law related matters.
© 2024 Shaista Meeha Attorneys – Designed by mPlanet