Blog | Divorce Attorney Cape Town

International South African Divorce

Posted on Mar 25, 2020 by Divorce Attorney Cape Town

Are you a South African married couple living abroad needing to divorce? Do you need to get divorced from abroad? Perhaps you own property or have a child in South Africa that needs to be protected? You may have a lot of questions about the process and costs of getting divorced under your unique international circumstances.

We can help you.

The international South African divorce process merely requires one of you to be available in South Africa, who can accept service of a divorce summons, and appear at court within a week or two.

There is no need for a protracted, expensive process.

Learn more about how we can assist you efficiently and cost effectively:-

International South African Divorce – what you need to know

We assist clients globally, including but not limited to couples in Canada, the USA, and Australia and others.

For more about how to start a divorce click here.

And for what to think about in the first 72 hours of divorce click here.

For more about our approach to divorce click here.

Finally, for our free guide to divorce, you can download it here: SD Law Guide to Divorce.

Contact Attorney Simon Dippenaar now for help with your international divorce. He or one of his divorce lawyers will immediately contact you back to assess your needs for free.

What does lockdown mean for parents?

Posted on Mar 24, 2020 by Divorce Attorney Cape Town

You and your child’s other parent live apart. Will your child be able to see you both?

If you are co-parenting with an estranged partner or ex-spouse, the first thought in your mind, on hearing the President’s announcement about lockdown, was probably: “What does this mean for access/contact rights?” It was certainly one of the first questions we had as family lawyers.

The interests of the child

The Children’s Act ensures that the interests of the child come first. This overarching principle means that, even where legislation does not specify conditions, all actions must be in the interests of the child. However, as we discussed in Human Rights in a Time of Pandemic, some rights have to be subverted to ensure more important rights, i.e. the right to freedom of movement is not as important as the right to life, if curtailing movement preserves life.

Ultimately, the interests of the child are served by having healthy parents and a functioning society, including normal schooling, and by ensuring good health for the child. If restricting the transfer of a child from one home to another facilitates these outcomes, then it could be argued it is in the best interests of the child. In normal circumstances, being deprived of contact with a parent would not be in the best interests of the child. But these are not normal circumstances. Our leaders have difficult decisions to make.

The government gazette that was released yesterday (23 March 2020) does not mention child care and contact specifically. Therefore the legal position at the time was unclear and in a state of flux. SD Law spoke to a Family Advocate’s office on 25 March 2020. Our impression was that the Chief Family Advocate does not want to make a decision either way. He is leaving it to parents to decide.

He did, however, say that child visitation should be allowed, taking all recommended precautionary health measures in the transport of the children, and not contravening the law of the land, or authorities, like the police and army. The situation is as clear as mud.

If you choose to travel with a child, I would recommend you keep an ID, a birth certificate, and any court order/parenting plan with you.

Little clarity

As of 25 March 2020 the regulations could be interpreted either way. It could be argued that contact with a parent is an essential service. The regulations do not specify. Other countries under lockdown do permit travel between parents, but that cannot be relied upon as a precedent. Other countries also permit certain activities that our government has expressly forbidden. You must decide.

Please proceed carefully and at your own risk. Remember that the best interests of the child are paramount in all circumstances affecting them.

There is not always a hierarchy of constitutional rights, especially in a state of National Disaster, but it is vital to protect a child’s right to life, and balance that against their right to see the other parent, in a fair, equitable, and safe manner.

Update 30 March 2020

On Saturday, 29 March 2020, Minister Zulu, in a press conference, directed that visiting children must stay with the parent at time of lockdown. She stated that the co-parent can make regular telephonic contact. This arguably contradicts the regulation that parenting plans must be attended to. Considering the health and safety reasons for the lockdown, the directive makes sense. However, it just shows how we can’t get a unified answer from law makers and government. Regulations should trump directives.

Update 28 March 2020

On the 26/27 March 2020 new regulations were released, specifically relating to child care:

Arrangements where a child is to move from one parent to another in terms of a parenting plan must be attended to (s 8(2) of 43167 26-3 COGTA).

However, on the 28 March 2020, the Minister of Social Development, in a press conference, recognising the regulations, gave the following directive**:-

“The child shall remain in custody of the parent with whom the child was with when the lockdown was effected.

“The parent who was not with the child during the lockdown, in order to remain a personal relationship with the child, may communicate on a regular basis with the child.”

Source: News24

**A directive is an official policy document, which guides government departments on how to apply law; whether it is lawful or not, remains to be tested. For more about the legal status of directives click here.

Update 26/27 March 2020

Two new government gazette’s were released last night (here and here).

Here’s a summary:-

Arrangements where a child is to move from one parent to another in terms of a parenting plan must be attended to (s 8(2) of 43167 26-3 COGTA).
Private’s vehicles shall not carry more than 60% of the licensed capacity, and that all direction in respect of hygienic conditions and the limitation of exposure of persons to COVID-19, are adhered to.
access to courts are restricted to person’s with a material interest in a case in urgent and essential matters. All criminal trials set down during the lockdown period are to be postponed. All civil cases will not be enrolled in court during the lockdown unless urgent and essential. The sheriff will not serve process unless urgent and essential.
Only the following family law services will be dealt with:
1. Orders of court failing due to required to be made during the period of lockdown in the following matters:
  1. foster care
  2. adoption
  3. removal of children in need of care and protection
  4. placement of children in child and youth care centres
  5. international child abduction cases

1. Maintenance matters:
  1. First time applications
  2. Applications in respect of enforcement of maintenance orders.
2. Protection orders
  1. Applications for interim domestic violence protection orders
  2. Applications for interim protection against harassment

Contact Divorce Attorney Cape Town for help

We are living in unique times. The situation is changing day by day, and no one is entirely sure what to do for the best. We have tried to explain the new “rules” as we understand them. If you need more advice or representation negotiating shared child contact under these extraordinary circumstances, please email Elly at info@sdlaw.co.za, and we will set up a paid telephonic consultation urgently. For any other matters concerning divorce or parenting, contact Simon at Cape Town Divorce Attorneys on 086 099 5146 or email sdippenaar@sdlaw.co.za.

We will continue to update this article as and when new information comes to light.

Self-isolation and divorce

Posted on Mar 23, 2020 by Divorce Attorney Cape Town

Will self-isolation in an ailing marriage spell the end or a new beginning?

A while ago we wrote about January – the divorce month. Often the family pressures that emerge during the festive season, combined with the enforced proximity to each other, turn a marriage from ailing to failing. Periods of extended time together and disruption to normal routine can bring into sharp contrast small cracks and imperfections in a marriage that the spouses were able to ignore the rest of the year.

What effect, then, will self-isolation have on marriages already under strain? If one family member tests positive for COVID19, or exhibits any symptoms even without having a test, all members of the same family must be in quarantine for 14 days. Two weeks is long enough to be stuck inside with someone you’re not getting on with, but if the government follows other countries in declaring a lockdown, we could all be self-isolating for much longer.

Make or break

As divorce lawyers, you might expect us to root for a break-up. After all, our business is built on divorce cases. Nothing could be further from the truth. Divorce lawyers are also known as family lawyers, and our priority is always ensuring the best possible outcome for the family. Sometimes divorce is the best possible outcome. Children are better off in two separate calm, loving homes than under one roof with both parents constantly at war with each other. But we are always pleased when two people considering divorce manage to work out their differences and re-commit to each other. We want to see happy and harmonious families and always support couples in their efforts to resolve conflict.

The enforced time together caused by COVID19 may very well cause couples to reflect on their lives together. They will have a chance, rare in our busy lives these days, to talk about values, priorities, challenges. There may be more fights than usual, as the tedium of confinement exaggerates small irritations. The very presence of the other person 24/7 may become unbearable.

But something positive may happen too. The enormity of the global pandemic and the threat to our health and very way of life may cause couples to reassess their past differences. They may realise they had a habit of bickering over petty matters, which only now are revealed in their true insignificance. They may bond over a shared concern for friends and neighbours, and for each other. The time together could re-ignite a flame that has all but died, and they could find themselves watching Netflix together, playing games, and doing the things they did in the early days of their relationship.

Speeding up what was already there

In either case, self-isolation is likely to exacerbate or accelerate a process that was partially latent and not yet obvious to either spouse. If the marriage really has broken down irretrievably, forced togetherness may be the final straw. It may convince both parties that they truly no longer wish to be married, and as soon as the restrictions are lifted their first port of call will be the divorce attorney.

For those who retain a shred of love and commitment for each other, but have experienced some difficulties in the marriage, the isolation may just give them space and time to unravel the tangled threads of their relationship and find solutions to their problems. It may remind them of why they married in the first place. It may mean the call to the divorce lawyer doesn’t happen, or a case already underway may be withdrawn.

Change of heart – change of marital regime?

For some, conflict resolution may mean a redefinition of the marriage. They may review their matrimonial regime and, in light of changes in their lives since getting married, decide to alter it via a post-nuptial contract. They may change their wills.

Change is inevitable

At this stage, we don’t know what will happen with COVID19 in the next few months. We don’t know if the current measures the President has put in place will be sufficient to contain the spread of the virus. We don’t know how long we might have to live with restrictions – possibly until a vaccine is available, and we don’t know how long that will be. Some say 12-18 months. The world is full of unknowns. Living with constant stress and uncertainty affects different people in different ways. Some harness it to inform the creative process. Some find it very difficult to cope with. Couples who react differently to stress often find their relationship takes a beating, as they are unable to give each other what they need because they can’t empathise with the other’s reactions.

When we finally come out the other side, we will all be changed. Many marriages will survive. Some will be strengthened; some will go to the wall. The current crisis will probably not change the inevitable; it will only accelerate it. If a couple is destined to divorce, confinement may make that apparent sooner than it otherwise would have been. If they are resilient enough to weather the storms of marriage, they will weather the storm of COVID19.

If you need us, we’ll be here

Whatever these unprecedented circumstances invoke in you, we are family lawyers who are here to help. If you decide divorce is the best thing for your family, or if you want to revisit your matrimonial regime and consider a post-nup, contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za.

Are you a single parent? Know your rights and obligations

Posted on Mar 22, 2020 by Divorce Attorney Cape Town

Unmarried fathers have the same duty to maintain their children as married dads.

International Single Parents Days is celebrated on the 21st of March in recognition of the hard work, devotion and sacrifices of single parenting.

According to research conducted by the Human Sciences Research Council (HSRC) and the South African Race Relations Institute (SARRI), sixty percent of SA children have absent fathers, and more than 40 percent of South African mothers are a single parent.

With the rising costs of living and education, being solely responsible for all the costs required to care for a child is no doubt a significant weight on the shoulders of a single parent.

In light of this, it’s imperative that single parents are familiar with their rights, especially regarding maintenance payments. David Thomson, Senior Legal Adviser for Sanlam Trust, answers some key questions:

Do single and married parents have the same rights?

Single parents have all the obligations that parents in partnerships have, which apply until the child is 18. These obligations, as stated in the Children’s Act of 2005, include meeting the child’s entitlement to the equal care and support of both parents. These responsibilities can however be excluded by the court if a parent is found to be unfit, abusive or damaging to the child.

In line with these, a single mother has the right to the custody of her child, the right to expect cooperation and respect from the child, the right to any income that the child might make, and the right to take legal action against anyone found guilty of unlawfully injuring or ending the life of the child.

The new Children’s Amendment Bill of 2019 seeks to clarify under which circumstances the unmarried father may be entitled to the same parental rights as the mother – and many other issues. Parliament will introduce the Bill for possible ratification this year.

Both parents bear equal responsibility for the child under the law. These responsibilities include supporting and contributing to the overall wellbeing of the child.

What issues are faced by different types of single parents?

Unmarried

As both parents have equal obligations, both are responsible for supporting their child and this includes paying school fees, welfare, maintenance and taking care of any medical expenses. To avoid any misunderstandings or conflict further down the line, parents – whether living together or not – are encouraged to put an agreement in writing covering arrangements regarding their children. Whatever is agreed upon should be in the best interests of the child.

Divorce

Normally, when couples get divorced, they get their lawyers to draw up an agreement which sets out exactly who is going to pay for what. Very often, this extends beyond the child reaching the age of 18. Commonly, both parties commit to paying maintenance and school fees until the child is self-supporting. It’s highly advisable that parents consult lawyers and financial advisers to ensure a fair arrangement, with maintenance payments that increase in line with inflation, for example. The settlement agreement should be made an Order of Court.

Death

Should one of the parents die, the surviving parent becomes the sole natural guardian and takes full responsibility for the child. This parent can claim against the deceased parent’s estate for child maintenance, but nothing for themselves. However, they will have a claim against the deceased parent’s retirement fund, if the surviving parent was dependent on the deceased for their living expenses. If there’s no will in place, the deceased parent’s money and assets will automatically be inherited by their children.

What if a parent won’t pay maintenance?

Failure to pay maintenance is a criminal offence that could result in a fine or imprisonment.

A parent would need to approach the maintenance officer at the local magistrate court and provide the particulars of the defaulting parent, who can then be summoned to appear at the maintenance court to explain why they have not met their obligations. Thereafter, a demand for maintenance payment can be made.

Though a child support order will remain in effect, it is generally plausible for parents who are unemployed to default on payment without legal consequence. But if a parent lies about their income, the courts could subpoena their employer to court and request payroll documentation for examination. If, at a later stage, the defaulting parent acquires assets or receives an income, a summons could still be issued against them for the maintenance in arrears.

If a defaulting parent dies, the other parent can put in a claim against their estate.

Who should a single parent contact when dealing with maintenance issues?

A parent can contact an attorney for support; however, this may come at a hefty cost. Alternative options include approaching a legal aid clerk or a family law clinic at a university for assistance. On the other hand, if you’re reasonably in charge of your own affairs, you can probably issue the process yourself through the Maintenance Court, as a lawyer isn’t a requirement.

Could paternal grandparents be held accountable for maintenance?

According to South African law, whoever’s left with the responsibility of a child has the right to claim against the other partner’s parents.

When should you put a Will in place?

A will is very important if you have children. Children cannot possess property, assets or any money and if both parents die, any assets left for them will end up in the Guardian Fund, under administration of the Master of the High Court until the child turns 18. Caretakers in this case are not given easy access to these funds, and can only withdraw a limited amount of money, which puts them in a difficult financial situation and impacts the child’s upbringing negatively.

Wills also avoid confusion and competition amongst relatives, since a will appoints an executor to manage the estate and may also nominate a tutor (guardian) to take care of the minor children.

Assets meant for the children may be left in a testamentary trust that is managed professionally through an attorney or a trust company like Sanlam Trust. This will safeguard the child’s future and address issues such as who the child will be living with, who is going to take care of the funds and when will be the appropriate age to remit all the monies to the child. And best of all, wills are easy and affordable to put in place and the trust conditions are seamlessly entered into the will.

Whether you’re married or not, raising a child is expensive; even more difficult on one income. There are great benefits to engaging a trusted financial planner for guidance through the process. The more a parent learns about protecting themselves and setting a practical financial plan in place, the better prepared they’ll become.

Source: IOL PERSONAL FINANCE (emphasis by SD Law*)

* SD Law, aka Simon Dippenaar & Associates Inc., is a Cape Town based law firm, of specialist divorce lawyers, and family attorneys. We are renowned for our high EQ win-win approach to mediated legal solutions. Contact one of our divorce attorneys today for advice on parental care and contact, especially if you are an unmarried, single parent, facing difficulty with your ex.

Related reading:

Posted in Single Parent, Unmarried father | Tagged child maintenance, death, divorce, Single parent, Unmarried, unmarried father, Unmarried mother, will | Comments Off

Want a friendly divorce?

Posted on Mar 20, 2020 by Divorce Attorney Cape Town

You may have to wait till at least May, due to the novel coronavirus

Source: Business Insider SA

Mar 19, 2020, 06:22 AM

South African courts at all levels are imposing restrictions to comply with the call for social distancing in the face of the novel coronavirus.
At magistrate’s courts, that means non-urgent matters are being postponed – and in at least one case that includes amicable divorces.
If you want to end a marriage in Randburg, you may have to wait at least a month to be heard.

South African divorces are on hold due to the novel coronavirus.

As courts at all levels this week implemented various measures to help curb the spread of SARS-CoV-2, the virus behind Covid-19, magistrate’s courts halted proceedings not considered urgent.

And at least one counts divorce among those.

“No new unrepresented unopposed divorce maters will be attend to until beginning of May 2020,” read an official sign at the Randburg Magistrate’s court on Wednesday.

Amicable divorces can be settled without lawyers. There is an official guide for doing so (which promises it can be achieved in the space of four weeks) and specialised websites that will help you get a DIY divorce for R1 000.

But because of their generally uncomplicated nature, unopposed divorces without lawyers involved do not receive high priority in scheduling, even in ordinary times.

Chief Justice Mogoeng Mogoeng this week promised that courts would operate largely as usual, with a special focus on hygiene and attempts to limit the number of non-essential people in court buildings.

Magistrates at some courts have been encouraged to handle administrative tasks from home, and legal practitioners have in some cases been ordered to go online – or even use fax – to lodge paperwork.

It is not yet clear how long the drive for social distancing may last, and how courts would deal with a hard lock-down of the kind that have been enforced in other countries.

But, noted one lawyer, friendly divorces are likely to remain at or near the bottom of the priority ladder.

In the meanwhile, online counselling is available in South Africa, with more such providers expected to adopt video conferencing in the near future.

(Compiled by Phillip de Wet, and some emphasis by SDLaw*)

* SDLaw, is a law firm of attorneys in Cape Town, Johannesburg and Durban, offering specialised divorce and family law services. Our divorce lawyers and family attorneys strive to represent your family’s best legal interests with uncompromising dignity. Contact us to learn more about our EQ win-win resolution approach.

Related reading:

Posted in News, online divorce | Tagged Coronavirus, COVID-19, Divorce courts, DIY divorce, Online divorce | Comments Off

Choose mediation over litigation in divorce

Posted on Mar 18, 2020 by Divorce Attorney Cape Town

In a country where almost half of all marriages fail, and fewer than four in 10 unions are dissolved before their 10-year anniversary, your odds are just about even of getting married and staying that way till death do you part.

Many divorcing couples think they can go their separate ways, but they don’t consider the financial aspects. Although there are no winners in a divorce, the death of a marriage should not guarantee ruination. Personal Finance spoke to mediators, lawyers and a financial adviser about how to safeguard your and your family’s future by mitigating against some of the more damaging consequences of divorce.

[…]

Mediation

As of March 9, the Rules Board for Courts of Law implemented an amendment forcing parties involved in high court lawsuits to declare whether or not they considered mediation prior to approaching the court. Attorneys are also required to confirm whether or not they advised clients to seek mediation. And before the parties are allowed to go to court, they must complete a “Form 27”, delineating the reasons why they believe the dispute cannot be solved by mediation.

[…]

Level-headedness – and skilful financial planning – are essential to the divorce process. Lee Hancox, the head of channel and segment marketing at Sanlam, warns against the temptation to rush through the process. You might want to get out of the emotionally stressful scenario as fast as possible, but it can be risky. “What you might be putting into your divorce agreement could be called into question when you get into the divorce court or it could be to your detriment in the long run,” Hancox says.

Financial advice

Financial advisers should be part of the process, she says, because they’re not just there to sell policies; they’re there for your entire financial journey. “I’m a strong believer in tapping into financial advisers. They have great contacts too.”

Updating your will is crucial. In terms of the Wills Act, if you don’t update your will within three months of a divorce and you die, your ex-spouse automatically inherits from your estate. “Your planner will know this and make sure it gets done,” Hancox says. “You wouldn’t want your family fighting after you die. If you die intestate, it can take months or years to wrap up your estate. It’s so important to have a proper will that is executable.”

She also advises working with your adviser to consider setting up a testamentary trust for your children to ensure the assets you’re leaving to them are appropriately managed.

Matshoza says although the divorce decree is binding on the parties, it’s not on the bank with which you have a mortgage bond. “The ex-spouse might commit to paying the bond, but the bank might not allow it.”

Debt is the elephant in the room. If you were placed under debt review during your marriage, both parties are affected, so your debtors must be notified and a new application made to the court. “We really do need to manage expectations and look at the consequences of divorce. Knowledge is power and people must be better informed. That’s not to say you shouldn’t divorce, but you should go into it with your eyes open,” Matshoza says.

Source: IOL (emphasis by SDLaw*)

*SDLAW, otherwise known as Simon Dippenaar & Associates Inc., is a Cape Town law firm, of specialised divorce lawyers and divorce attorneys. We offer divorce legal services focusing on a mediation first approach. Our motto is to represent our clients with a sense of uncompromising dignity. We focus on fairness, putting the family first, while always remaining sensitive. Contact us for more at 086 099 5146 or email Simon at sdippenaar@sdlaw.co.za.

Related reading:

Posted in Divorce mediation | Tagged alternative dispute resolution, divorce mediation, settlement negotiations | Comments Off

Astonished judge tells ‘unemployable’ wife to find a job

Posted on Mar 8, 2020 by Divorce Attorney Cape Town

Pretoria – Pull in your belt and find a job if you want to maintain your lavish lifestyle.

This was the message a judge had for a mother of three who is divorcing her husband. The woman had turned to the High Court in Joburg, demanding more maintenance for her and her children, pending the outcome of their divorce settlement.

While her estranged husband earns a salary of R36 100 a month, the 27-year-old woman told the court her monthly expenses totaled R53 000.

She added that her husband, who is “staunch Greek Orthodox”, never allowed her to work. Thus, not used to going to work daily, coupled with the demands made by her three small children, she is unemployable.

But this did not go down well with the judge, who said he was astounded by her monthly expenses in light of her husband’s income.

The judge said the woman is pushing for a lifestyle her husband simply cannot afford – not while they were married, and not now.

“Quite simply, the applicant has painted herself as an unreasonable person,” Acting Judge NN Bam said.

The woman is demanding R20 000 maintenance a month for her and the children; over R9 000 for municipal services; he has to pay their medical aid; and over R10 000 a month towards the children’s private school fees.

The woman also wanted her husband to pay R20 000 towards her legal fees, while he has to foot the bill for this application.

The husband in turn said he simply could not afford this.

As things stand, he is living with his parents, and is already paying the bulk of his monthly salary towards his estranged wife and children.

He barely had money left to pay for petrol and toiletries, he said.

But the woman was adamant that it was his fault that she was “unemployable”. She said as a staunch Orthodox Greek, he never allowed her to work as only she and the grandmothers were allowed to take care of the children.

She said she held a degree in architecture, but she had never worked in this field. But her husband said she chose not to work.

The judge asked whether there were any health issues which prevented her from working, to which she answered no. In his judgment he said: “I find it astonishing, to say the least, that she concluded that she is unemployable.”

He accepted that she did not have practical experience in her field, but said many young graduates faced the same problem, and her situation was not unique.

“I accept there are challenges in restarting one’s life after having spent time at home as a home-maker. “However, often women – some at advanced ages and impelled by financial difficulties – do find a way to make it work.”

The judge rejected the notion that she is unemployable. He ordered the husband to pay R3800 a month to his wife and R2500 per child, pending the finalisation of their divorce.

Her request that he pay her legal fees was declined.

Source: Pretoria News (emphasis by SD Law*)

*SD Law Cape Town Attorneys are a firm of divorce attorneys in Cape Town, Durban and Johannesburg offering highly personalised divorce lawyer services, with iron-clad confidentiality. Contact Simon at sdippenaar@sdlaw.co.za for immediate help.

Related reading:

Posted in Child maintenance, Divorce, Interim Maintenance, Rule 43 | Tagged Children maintenance, costs of divorce, divorce attorney, divorce attorney cape town, divorce lawyer, divorce lawyer cape town, Family Attorney, Family attorney cape town, Family Lawyer, Family lawyer cape town, Judgement, Legal fees, Maintenance, rule 43, spousal maintenance, Unemployable | Comments Off

How to start a divorce

Posted on Feb 23, 2020 by Divorce Attorney Cape Town

You want to get a divorce but aren’t sure where to start or what to do

You want to start a divorce. It’s a frightening prospect. You entered married life full of hope, and the breakdown of your marriage is inevitably sad and disappointing. But ending it and starting again is daunting, which may be why people stay in marriages long after the relationship has soured. You may also be wondering which way to turn when it comes to starting divorce proceedings. Do you need a divorce attorney? Can you do it yourself? How much does a divorce cost? How do you deal with parenting arrangements?

Let’s look at how to get a divorce step by step.

Step 1 – Can you do it yourself?

It is possible to handle your divorce yourself, without legal advice. This is often called a “DIY divorce” or sometimes an “online divorce”(it is not). We don’t advise it, because there are many details you may not be aware of, and a good divorce lawyer will make sure your interests are properly protected. However, there are some circumstances when you can get a divorce yourself and it makes financial sense, for example – if you have no children, are married out of community of property without accrual, and do not have a shared asset such as a house you purchased jointly. If you can make a clean financial break and you both agree on the terms of your divorce, then a DIY divorce can save you a lot of money.

If you choose this route, you must still go to court. All divorces in South Africa are granted either in the High Court or the Divorce Court, as a division of the Magistrate’s Court. A judge must grant a divorce order. The procedure is as follows:

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. To speed up the process, you can go together
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

But unless your split is very amicable and you are confident of 100% agreement, you would be wise to appoint a good family lawyer to get a divorce.

Step 2 – consult a family lawyer

If you are married out of community of property with accrual, or in community of property, then there is a financial settlement to work out. If one of you has a pension fund, your finances are even more complicated. At this stage you must decide if your divorce will be uncontested, contested or mediated.

The easy way – uncontested divorce

An uncontested divorce is the quickest and least costly option and is generally less stressful than other types of divorce.

If you both agree divorce terms, such as maintenance, division of assets, and child care and contact, you can appoint an impartial attorney who will represent both spouses. The divorce attorney will draft the official settlement agreement, you both sign it, and it is made an order of the court. An uncontested divorce is often finalised in weeks, not months.

An uncontested divorce will cost anywhere from R7 500 to R15 000, depending on the complexity of the divorce.

The hard way – contested divorce

A divorce is contested when there is great animosity between the spouses and they cannot agree the terms and conditions of their divorce. A contested divorce can lead to multiple court appearances, and ultimately the court decides the terms of the divorce. Legal costs can spiral, the emotional impact can be severe, and it may take three years or longer to get a divorce.

Contested divorces are to be avoided if at all possible. Because a contested divorce can drag on for years, it is not possible to give an indication of cost. In a contested divorce the attorney will usually charge an hourly rate and will be unlikely to quote you a fixed fee. You may be asked to pay a retainer, which your family lawyer will deposit in a trust account and draw on as costs are incurred. You will receive a monthly statement of the lawyer’s time and the services of any experts consulted. If the case goes to trial or is even prepared for trial, you can expect considerable hours involved and associated high costs.

The third way – mediated divorce

Provided you and your spouse can be in the same room together, even if you don’t agree on everything, a mediated divorce can be the middle ground between the harmony of an uncontested divorce and the acrimony of a contested one. In a mediated divorce, an attorney and/or a professional mediator will help you negotiate and reach agreement.

A mediator is an impartial trained professional who will help you reach a settlement that lets both of you move on. Mediators are usually appointed by the attorney who provides the legal advice.

Once agreement is reached through mediation, the attorney can draft the official settlement agreement, which you both sign, as per an uncontested divorce. It takes around three months to get a mediated divorce.

A mediated divorce will incur mediator’s fees in addition to the divorce lawyer’s fees. The total cost will be between R10 000 and R30 000.

Step 3 – Go to court

The procedure for mediated and contested divorces is roughly the same as for an uncontested divorce, but is usually more complex:

A divorce summons is drafted.
The summons is issued by the court on behalf of the person launching the divorce action (called the plaintiff). It includes details of both parties, date and place of marriage, and what the plaintiff wants the divorce order to determine.
The summons is delivered by the Sheriff to the other spouse (called the defendant).
The defendant responds to the divorce summons. This is called a plea.
Together with the plea, the defendant delivers a counterclaim document, which sets out what the defendant wants the divorce order to determine. Or the defendant does not contest the divorce and the plaintiff’s terms are met without amendment.
If the defendant makes a response, the plaintiff may make a plea to the defendant’s counterclaim.
This is usually the end of the plea process. The documents are known as the pleadings.
The plaintiff applies to the court for a trial date.
Under South African law, all documents to be used by either party in a trial must be revealed to the other party before the court date. This is called a discovery process.
After the pleadings close each party’s divorce lawyer will request the other party to disclose and provide copies of all documents they intend to use to support their arguments in court, such as bank and credit card statements, share certificates, documents proving ownership of assets or debt, etc.
If the spouses do not manage to reach a divorce settlement agreement, the divorce will go to trial and the court will decide who gets what.

Stumbling blocks along the way

Child care and contact

When you get a divorce, custody (“care”) of any children of the union is normally granted to a single parent, with reasonable access (“contact”) awarded to the other parent. Or the parents may opt for joint (shared) custody. If parents cannot agree on the care arrangements for children, the court may insist on a parenting plan. A parenting plan is a good idea even in an amicable divorce because it defines the roles and powers of each parent. The plan also sets out the parenting time schedule and other details, such as holiday arrangements.

Family Advocate

Where there is an irresolvable dispute, the Family Advocate may be called in. The Family Advocate is a state official who assists divorcing parties to reach an agreement on issues such as care, contact and guardianship. In the absence of parental agreement, the Family Advocate makes a recommendation to the court with the best interests of the child uppermost in their guidance.

Spousal maintenance

In South African law, no one with the ability to support themselves is entitled to maintenance. However, a court may order rehabilitative maintenance, after considering the couple’s current and potential future financial means, earning capacities, financial needs and obligations, the length of the marriage, and other factors. With rehabilitative maintenance, the court will estimate how much time it will take for the relevant spouse to gain the skills to re-enter the job market.

Step 4 – Self-care

When you get a divorce it is more than the dismantling of a legal union. It is the unravelling of a binding thread that, at one time, seemed permanent. The emotional consequences, even of an uncontested divorce, must not be overlooked. Sadness, depression, anxiety, anger, and a sense of failure are very common and normal responses to the divorce process, and they may persist long after the divorce is granted.

If you are feeling overwhelmed by the emotional impact of your divorce, or are struggling to build your post-divorce life, don’t be afraid to seek help. A professional counsellor, psychologist or therapist can help you come to terms with your loss (for divorce is a form of loss) and explore strategies for moving on.

Consult a good family lawyer

If you want to get a divorce and need help to get started, talk to our divorce attorneys. We’ll help you explore your options. At SD Law we are known for our EQ and our sensitive approach to family law. We’ll handle your case with compassion without sacrificing efficiency. Contact Simon on 086 099 5146 or email sdippenaar@sdlaw.co.za for a discussion in complete confidence.

For more detailed information on how to get a divorce, download our Guide to Divorce.

You and your child’s other parent live apart. Will your child be able to see you both?

The interests of the child

Little clarity

Update 30 March 2020

Update 28 March 2020

Update 26/27 March 2020

Contact Divorce Attorney Cape Town for help

Further reading:

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Make or break

Speeding up what was already there

Change of heart – change of marital regime?

Change is inevitable

If you need us, we’ll be here

Further reading:

You may have to wait till at least May, due to the novel coronavirus

You want to get a divorce but aren’t sure where to start or what to do

Step 1 – Can you do it yourself?

Step 2 – consult a family lawyer

The easy way – uncontested divorce

The hard way – contested divorce

The third way – mediated divorce

Step 3 – Go to court

Stumbling blocks along the way

Child care and contact

Family Advocate

Spousal maintenance

Step 4 – Self-care

Consult a good family lawyer

Further reading:

Divorce Attorneys

Essential Reading

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