Online divorce – beware the pitfalls

Online or DIY divorce may look cheap – but could cost you dearly in the long run

Google “online divorce” or “DIY divorce” and you will be overwhelmed with results. It’s made out to be as easy as buying tickets to a show, and almost as cheap. It may be easy, but it’s not that simple. At Cape Town family law firm SDLAW, we don’t offer online divorces. We believe that divorce is a serious matter, however amicable, and deserves to be treated with the same respect and dignity as the institution it seeks to dissolve. 

No such thing as an online divorce

Divorce is not granted online. This is a misnomer. All divorces in South Africa are granted either in the High Court or the Divorce Court, as a division of the Magistrate’s Court. Only a judge can grant a divorce order. All an online divorce attorney does is charge you to provide you with the relevant documentation. They do not appear in court for you or with you. You must still:

• Sign the Deed of Settlement
• Make copies of all documents
• Go to court and issue your summons and annexures at the Registrar of court
• Take the documents to the Sheriff of the Court to serve on the defendant. You can go together, which speeds up the process, but you still have to attend in person 
• If you have minor children, go to the Family Advocate
• Go back to court to get a date for the hearing
• Appear in court on that date

So while it may be a DIY divorce, the only “online” function is the provision of documents, for which you pay a fee. The online divorce lawyer won’t tell you that your local magistrate’s court will provide you with the necessary forms (for free) and give you guidance on the procedure to effect your own divorce without legal representation.

Advice and guidance is fundamental

Online or DIY divorce is only suitable for couples who have discussed and agreed the terms of the divorce. DIY divorce agencies emphasise this point. What they fail to say, however, is that there are many factors that the divorcing couple might not have considered or even be aware of. Certain issues, undisclosed or unresolved at time of divorce, can come back to haunt the couple later in life. Unwinding a legal partnership – for that’s what a marriage is, in the eyes of the law – requires competent legal advice. And the fact that the partnership is also a personal one means that sensitivity and compassion from a legal adviser is essential. As family lawyers we have a reputation for high EQ and a caring approach to divorce.

Online divorce issue 1: Assets

If the divorcing couple rents their home, has no children (we’ll come on to that later), and has no other property in common, they might get away with a DIY divorce. But if there is a shared marital home, with a bond, there are complex issues such as the transfer of property to manage. Is there an antenuptial agreement (“pre-nup”) in place? Is the marriage in or out of community of property, and with or without accrual if the latter? There are many financial implications of divorce when assets are involved, and only a legal adviser can make sure all elements of the marital estate are accounted for.

Online divorce issue 2: Maintenance and pensions

Unless you’re a lawyer, you won’t know all your legal entitlements. You may be able to claim maintenance from your spouse, even if they are unemployed, because maintenance can kick in once they secure employment. If you are married in community of property, you can claim 50% of your spouse’s pension – even before they reach pensionable age, and of course that works both ways. Handling your divorce yourself could mean you miss out on financial compensation to which you are entitled, or it could mean that your spouse makes a claim later on that catches you unawares. A good divorce lawyer will ensure these matters are all dealt with up front.

Online divorce issue 3: Children

If there are children, there is a procedure that must be followed, however the divorce is enacted. Even if parents draw up a post-divorce parenting plan, a court must be involved when it comes to custody and access (now called “care and contact“). The parents may approach a family advocate for help with the parenting plan, but they only advise the court on what’s best for the children – they do not issue a judgement or an order. Again, a family law firm will ensure the best arrangements are in place before approaching the court.

Cape Town family lawyers can help

We understand that cost is an issue. Dividing assets and setting up separate households is more costly than maintaining the family home, and inevitably everyone is worse off financially. It’s reasonable for couples to want to spend as little as possible on the divorce itself, especially if they have done the hard work of thrashing out an agreement. At SDLAW we offer fixed fees for an uncontested divorce, so you know at the outset what you will pay. It may cost a little more than doing it yourself, but you will be better off reaching a settlement that is legally watertight and protects your interests, now and in the future. There is no one-size-fits-all solution for divorce. We will make sure your divorce fits you. 

Contact Simon on 086 099 5146 or email simon@sdlaw.co.za.

Further reading:

• Considering divorce?
• Choosing the right divorce lawyer or family attorney in South Africa
• International South African Divorce – what you need to know
• International child custody
• Online Divorce South Africa

Divorce Attorney Cape Town

http://divorceattorneycapetown.co.za/

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