Digital divorce

Online dispute resolution in family law

Technology is an unavoidable feature of modern life. More and more daily activities are digitalised; chatbots are commonplace and AI tools are beginning to permeate every facet of our lives, from healthcare to fitness. The legal profession is no exception. One of the most noticeable shifts has occurred in the realm of family law, particularly in divorce and custody cases. Online dispute resolution (ODR) allows divorcing couples to resolve disputes without undergoing the trauma of a court appearance. The use of ODR in divorce has the potential to speed up proceedings and lower costs. It offers convenience and efficiency. However, it also introduces considerations that must be carefully managed. 

What is ODR?

ODR refers to the use of digital tools, platforms and technologies that facilitate dispute resolution between parties without the need for physical court appearances. In a divorce case, ODR might include virtual hearings, online mediation and/or digital tools for document submission. These tactics can streamline and accelerate the divorce process, removing the need for travel or face-to-face meetings.

Family law often involves sensitive and emotionally charged matters, including asset division, maintenance and, most critically, child care and contact. Traditionally, disputes concerning these issues were handled in physical courtrooms where both parties, along with their legal representatives, presented their case before a judge or magistrate. The process was time-consuming, expensive and emotionally draining.

The legal profession has gradually embraced ODR, with several courts and legal professionals now offering online facilities for divorce settlements, maintenance disputes, and even virtual hearings under special circumstances. The increased use of technology, especially since the COVID-19 pandemic, has made these services not only more commonplace but also more reliable and secure.

The benefits of digital divorce resolution

The primary advantage of ODR is convenience, which brings with it speed and efficiency. Spouses can participate in hearings, mediations and consultations remotely, eliminating the need to travel to court. This is particularly helpful for those living in rural areas or overseas. Virtual hearings and online mediation can take place within more flexible timelines; and digital documentation allows for quicker review and submission of evidence, reducing delays associated with physical paperwork. In cross-border disputes, ODR enables participation in legal proceedings from any location.

Another key benefit is cost reduction. Traditional divorce proceedings are expensive, and costs rapidly mount if the divorce is contested. With ODR, many of these costs can be reduced. Legal professionals can communicate and submit documents electronically, resulting in less need for personal appearances, which can add up financially.

Privacy is of course crucial, and the threat of cybercrime and data breaches is an ever-present concern, especially with an inherently private matter like divorce. To safeguard confidentiality, sensitive information can be shared securely through encrypted platforms. Virtual hearings can also reduce the possibility of media exposure, which can be a risk for high-profile individuals.

Challenges and considerations of digital divorce

While the advantages of ODR in divorce are attractive, there are also challenges and considerations that need to be addressed. Digital inclusivity is increasing all the time, but it is not yet universal. Not everyone has access to high-speed internet or the technology required to pursue divorce proceedings effectively online. In rural areas, slow internet speeds and lack of digitalisation can limit participation. This inequality must be addressed if ODR is to be accessible to all South Africans.

Furthermore, while warring couples may find court appearances distressing and appreciate the distance ODR allows them to maintain, the lack of face-to-face contact can make it difficult to establish the rapport necessary for effective negotiation and mediation. While divorcing spouses may be unable to be civil to each other, a good mediator can establish a bond with both parties that builds their trust and helps them to reach agreement. Virtual hearings may not always provide the same emotional resolution, particularly in contentious matters where body language and tone can significantly influence outcomes.

Legal framework 

While South Africa’s legal system is gradually adopting ODR, there is still a need for clear guidelines and regulations to govern the digital resolution of family law disputes. Legal professionals, judges and mediators vary in their technological proficiency and levels of adoption of new procedural tools. A consistent approach, within a clear legal framework, is needed.

For cross-border issues, such as international child relocation or multi-jurisdictional divorces, the use of ODR may be more complicated. Different countries have different laws regarding online proceedings, and parties in an international case must ensure they comply with the relevant legal standards in both jurisdictions.

Child care and contact disputes

An area where ODR has enjoyed success is child care and contact disputes. The use of virtual consultations and online mediation has made it easier for separated parents to agree arrangements without the need to meet. This facility is especially helpful for parents who live in different locations, and for high-conflict parents.

However, these virtual hearings need to be conducted with sensitivity, making sure both parents are heard and the child’s wellbeing is uppermost. Legal professionals must ensure the virtual environment supports fair and impartial decision-making.

Do you need a divorce attorney?

SD Law is a firm of attorneys based in Cape Town, with offices in Johannesburg and Durban, who are experienced in divorce and family law. If you are considering divorce and think ODR might work for you, or you just want to discuss your options, call family lawyer Simon Dippenaar on 086 099 5146 or email sdippenaar@sdlaw.co.za for a confidential discussion. Together we will determine the best way forward for you.

Further reading:

• International and multicultural child care and contact
• The future of family law
• Revolutionising child care post divorce

Divorce Attorney Cape Town

http://divorceattorneycapetown.co.za/

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