The “D” Word

Whilst this is no doubt an unpleasant topic, divorce is a relevant and important issue to consider as it affects so many women.

The modified crude divorce rate in South Africa for 2003 was 520,4 per 100 000 married females (as quoted by Statistics South Africa)…..

Divorces most commonly occur in the first five to nine years of marriage, which may explain the phenomenon of the so-called “seven-year-itch”

Marriages break up for many different reasons and therefore the concept of fault in respect to marriages no longer exists in South African law. This means that neither party is penalized for the breakdown of the marital relationship.

Should one of the parties in the marriage behave in a grossly unfair manner, there is an avenue for penalizing that party.  This, however, occurs rarely and is not readily applied by the courts readily.

What needs to be considered

It is so important that you and your spouse discuss certain issues if going your “separate ways” is a real possibility. Communication is, however, very difficult at such an emotional time and for this reason, it may be important to seek professional help, whether it be legal or psychological.

If you are able to discuss matters with your spouse, the following topics should be discussed:

1.    Possibility of reconciliation (perhaps again, with the relevant professional help);
2.    Division of assets according to the matrimonial regime of your marriage;
3.    Primary care of the children (previously known as “custody”);
4.    Contact with children (previously known as “access”);
5.    Maintenance for children and, if needs be, spousal maintenance;

Very often parties will not agree on all these issues and, more often than not, they will agree on none of these issues. However, discussing them will still give you an indication of your spouse’s intentions in respect to the divorce.

Do we need a lawyer?

The court system and the procedures of a divorce can be complex. Divorce is a legal concept and for this reason, protecting yourself through relying on the law is greatly encouraged. If you and your spouse are in agreement on the issues then a divorce can be done without an attorney.

However even when you are in agreement and have written out a settlement agreement encompassing your agreement, there are often unintended outcomes or issues that you may not have considered circumstances that might come into play later.

If you do not agree you will undoubtedly require legal assistance though the assistance you need will be very different to where the issues are acrimonious.

It is our suggestion that even if you attend to the divorce without an attorney that you consult an attorney to peruse your settlement agreement. This would make sure that the agreement complies with the law and that it deals with unforeseen issues that may occur after the divorce (for instance: which spouse has the minor children for Christmas and whether medical expenses not covered by medical aid will be shared by the parties).

The finer details of how a divorce proceeds and advice regarding the nitty-gritty issues which occur during the conduct of a divorce will be dealt with in later articles.

About the author

Andrea Goldman is a Partner at Goldman Schultz Attorneys. For more information contact info@gslaw.co.za or www.gslaw.co.za