We Treat Our Clients Like Family
Our firm is dedicated to family law exclusively. We offer specialised advice and assistance on a wide range of family law issues such as divorces, maintenance, children’s law, negotiation and strategic advice. Our main focus is on finding innovative and sustainable solutions to suit the individual and the entire family.
Our services are flexible, efficient and personalised.
We leverage the latest technology to create a balanced and informed culture to deliver exceptional work that is high quality, accessible and efficiently completed. We believe that our innovative model is helping to change for the better the way legal business gets done.
Make Your Selection Below To See Our Range Of Services
Opposed (contested) Divorces
The opposed divorce (also referred to as contested) process is when spouses cannot reach an agreement on one or more important issues in order to terminate their marriage. When parties do not have a settlement agreement in place (as in the case of a harmonious/uncontested divorce) they can issue a summons with the intention of having the court adjudicate their dispute. Typical contentious issues requiring resolution during the course of an opposed divorce includes disputes around how the marital finances will be distributed (i.e. the patrimonial consequences of the divorce), maintenance or care and contact of the children.
Opposed divorces can be very time consuming and expensive but in most cases the parties will end up settling long before they go to Court – usually due to financial reasons. For an opposed divorce you will have to appoint several professionals such as attorneys, advocates and experts.
It is important to remember that an opposed divorced can become a harmonious/unopposed divorce once the parties have settled.
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Harmonious/Uncontested Divorces
Harmonious (also referred to as uncontested) divorces are where spouses have agreed that they do not wish to fight and where they are both ready to work together to agree to a formal written settlement leaving nothing of consequence that is disputed or unresolved.
The process is fairly straightforward, cost-effective and can take up to as little as 4 weeks to finalise from the day that a settlement agreement is signed.
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Collaborative Divorce
The collaborative divorce process involves each spouse having their own attorney to represent them and look after their interests but the parties and their lawyers agree that from the outset they will work in good faith towards negotiating a settlement. This agreement involves the attorneys and both clients agree to sign a participation agreement which states that from the outset they agree not to go to Court but to work in a collaborative way to resolve their divorce issues.
Collaborative Divorce requires both parties to agree to the process. If the parties find that they cannot collaborate, then the option of litigation remains provided that new attorneys are appointed by each party. This takes away the financial incentive for attorneys to run to Court rather than remaining committed to working together towards settlement. If the parties do succeed in their collaboration, then the negotiated settlement is made an Order of Court on an uncontested basis.
In South Africa we are still favour mediation before litigation but collaborative divorces are becoming increasingly popular abroad. The biggest pro to collaborative divorces are that it can save spouses a lot of time and money by ensuring that both parties can comfortably negotiate in good faith whilst having their interest protected by their own attorney.
Divorce Mediation
Divorce mediation is a voluntary settlement process used by spouses either before or during their divorce action. The process involves seeking the assistance of an experienced mediator (an objective party) to help them reach an agreement by acting as an intermediary. The mediator may offer an opinion or make suggestions but, at no time are they allowed to force an agreement upon the parties.
The mediation process is not only cheaper and faster, but it is also more inclusive which means fairer results for both parties. A prudent approach would be that parties attempt 2-3 sessions of mediation before approaching an attorney. Even if mediation fails, the parties would have identified the contentious issues during the mediation process which would enable them to properly instruct their attorney when it becomes necessary.
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International Divorces
In order for parties to get divorced in South Africa one of the spouses must be either domiciled in South Africa or an ordinarily resident for a period of not less than one year immediately after the divorce action was instituted.
If both parties have relocated abroad with the purpose of making the new country their permanent home, it is presumed that that they are then domiciled in the new country and they will have to institute divorce proceedings in the country in which they are domiciled.
If one party is domiciled in South Africa but living abroad they can get divorced in South Africa and we will be able to assist from our offices in Cape Town.
It is important to remember that the proprietary consequences of a marriage is governed by the laws of the place where the husband was domiciled at the time when the marriage was concluded. (regardless of where the husband is domiciled at present or where you got married).
Click here to download our international harmonious divorce questionnaire
Financial Relief During Divorce
Divorces can take a very long time when it is contested. The law recognises that financial assistance may be required by a spouse who has historically been financially dependant on the breadwinner spouse. High Court Rule 43 or Magistrates Court Rule 58 applications are interim applications for very specific interim relief pending divorce. The aim is to provide expeditious and cost-effective assistance to an applicant when an opposed divorce is taking a long time to finalise.
The process is straightforward but will require the applicant to take a look at their finances. The court requires that the applicant set out what his/her maintenance needs are so the applicant must be able to provide the court with a list of expenses as well as a proper disclosure of the applicant’s financial position. Do make use of our Rule 43/58 spreadsheet to help you get started.
A Rule 43 or Rule 58 can be used to claim the following:
- Maintenance (Personal and/or child)
- Interim contribution towards legal costs pending the divorce action
- Interim care and contact of the minor children
- Delivery of car or furniture
Spousal Maintenance
In South African law spouses have a common law duty to maintain each other during their marriage. Maintenance post-divorce is regulated by section 7 of the Divorce Act. In terms of the act, the court may, as part of granting a decree of divorce, order that one spouse pay maintenance to another as part of an agreement between parties. (When parties have signed a settlement agreement wherein one spouse agrees to pay maintenance).
The act also provides that the court may make an order which it finds just in respect of payment of maintenance by one spouse to the other by taking various factors into account. It is important to remember that post-divorce maintenance is not an automatic right and any order will be at the discretion of the court.
Various factors to be taken into account include;
- The parties’ existing and prospective means
- The parties’ earning capacities, financial needs and obligations
- The age of each of the parties
- The duration of the marriage
- The standard of living of the parties prior to the divorce
- The parties’ conduct in so far as it may be relevant to the breakdown of the marriage.
- Any other factor which the court believes should be taken into account.
Strategic Settlement Counselling
We understand that settling a dispute can be easier said than done. We also understand that litigation can have far-reaching effects on a couple’s finances and family life.
Our strategic settlement counselling service involves independent and personalised strategic advice for the purpose of settling disputes based on various factors such as a couples desires, needs, financial position and future plans. Counselling sessions can be initiated by either one or both parties prior to the divorce being instituted.
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Children’s Rights
Children’s rights are entrenched in the Children’s Act 38 of 2005 (“the Children’s Act”) and the Constitution of the Republic of South Africa,1996. In all matters concerning the child, the best interest of the child are of paramount importance and the Children’s Act provides an extensive list of factors to be considered when determining the best interest of the child.
Every Magistrates Court is a Children’s Court. The court deals with matters affecting the rights of minor children and any person or child may approach the court when it is believed that a child is in need of care and protection. The court also makes the decision about children who are abandoned, neglected and abused and in need of a place of care.
Good to know
It is mandatory for dentists, teachers, social workers, lawyers, ministers of religion, nurses and traditional leaders to report child abuse, neglect and physical injury.
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Parental Responsibilities and Rights
The Children’s Act 38 of 2005 provides that a parent has the following rights and responsibilities towards his/her child:
- to care for a child;
- to keep contact with a child;
- to act as guardian of a child; and
- to contribute to the maintenance of a child.
Although both parents of a child have equal rights and responsibilities, specific rights and responsibilities may be given to one parent, either by court order or agreement between the parents if the parents are not living together.
The Children’s Act also makes it possible for the parental rights and responsibilities to be shared between several persons, even if there exist no biological or legal relationship between the child and the adult.
A parent or any other person who has an interest in the wellbeing of a child can apply to the Children’s Court, High Court or the Divorce Court during divorce proceedings for an order granting him/her with rights and responsibilities.
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Parenting Plans
Section 33 of the Children’s Act (“the Children’s Act”) states that persons who are co-holders of parental rights and responsibilities may enter into a written contract that regulates and describes how they should exercise these rights and responsibilities toward the child. This is known as a parenting plan.
The following issues are usually described in the parenting plan:
- Where the child is to live;
- The maintenance responsibilities of each party;
- Contact between the child and any of the parties; and
- Schooling and religious upbringing of the child
A parenting plan should reflect the interests and the needs of the child and should be drafted in such a manner as to allow both parents to have clear guidelines to promote effective and peaceful co-parenting post-separation.
In the event of disagreements about the parenting plan, the Children’s Act prescribes that the parties should first attempt to solve the problem with the help of a suitably qualified expert. This person can be a family advocate, social worker, psychologist or a certified mediator. If this first step fails, then the parties may approach the courts for relief.
It is very important to remember that a parenting plan only takes effect if it is registered with the family advocate or made an order of the High Court, a divorce court in a divorce matter or the children’s court on application by the parties to the agreement.
Child Maintenance
The duty to maintain a child is shared between both parents according to their respective means. This duty applies regardless of whether the child was adopted or born out of wedlock.
A parent can claim maintenance on behalf of their child until the child reaches the age of majority. (In South Africa the age of majority is 18 years).
Once the child turns 18 years, the child is considered an adult and he/she would need to apply for maintenance in their own name should they require continued funding.
A parent cannot evade the responsibility to pay maintenance and it is important to remember that a parent’s duty to support their child is not affected by remarriage post-divorce or giving up work to embark on full-time studies. Even if a parent has no income, the courts will consider the assets of the parent and may order them sold to pay for the maintenance obligation.
Reasonable maintenance comprises the basics needed to sustain life – such as food, shelter and medical attention – in addition to more advanced needs such as higher education should the child display aptitude. If the parents cannot agree on reasonable maintenance, the court will determine the amount based on the specific circumstances of the child as well as the parents’ economic means.
Click here to find read more about approaching the Maintenance Court yourself
Unmarried Father’s Rights
Prior to the Children’s Act 38 of 2005 (“the Children’s Act”), an unmarried biological father’s rights were not automatically recognised. In order to gain access, custody or guardianship he would have had to bring an application in the High Court.
Fortunately, times have changed and now an unmarried biological father automatically acquires full parental rights and responsibilities if he fulfils the criteria set out in section 21 of the Children’s Act:
- If at the time of the child’s birth he is living with the mother in a permanent life-partnership; or
- If he, regardless of whether he has lived or is living with the mother –
- consents to be identified as the child’s father or successfully applies to be identified as the child’s father or pays damages in terms of customary law;
- contributes, or has attempted to contribute in good faith, to the child’s upbringing for a reasonable time; and
- contributes, or has attempted to contribute in good faith, to the maintenance of the child.
If any dispute arises about whether the father fulfils the criteria, the parents are first required to go for mediation with a family advocate, social worker or any other suitably qualified person.
If it is found that the father doesn’t satisfy the criteria, he may then enter into a written contract with the mother of the child to gain parental rights and responsibilities or approach the High Court to gain these rights.
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Relocation Applications
When a parent decides to relocate with the minor child, the consent of the other parent as co-guardian must be obtained in terms of the Children’s Act 38 of 2005 (“the Children’s Act”).
The Children’s Act does not provide guidance in deciding relocation applications and therefore the High Courts decide what is in the best interests of the child.
In evaluating the application, the High Courts will be guided by case law and consider whether the relocation is:
- Reasonable;
- In good faith; and
- Compatible with the child’s welfare.
The High Courts must balance the impact of the decision on all parties. The Court recognises that granting a relocation application will sever the child’s contact with the stationary parent and respect that it will have an impact on the parent’s life. At the same time, the Court also recognises the rights of the relocating parent to family life and freedom of movement.
It is in the best interests of the child to maintain contact with the stationary parent and this will usually be determined by entering into a parenting plan specifying how contact will be maintained.
In relocating cases, it is in the best interest of the child to maintain a positive relationship with the stationary parent and in practice the parents usually enter into a parenting plan (with or without the assistance of a mediator) governing their co-parental responsibilities and rights post-relocation.
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Domestic Violence Matters
Domestic violence is considered as abusive or aggressive behaviour involving a spouse or partner, whether living together or apart. Domestic violence is not limited to physical abuse.
Any behaviour which may cause harm to the safety, health or well-being of a victim is considered abusive.
There are four other types of domestic violence in addition to physical abuse. These are:
- Emotional;
- Psychological;
- Sexual; and
- Economic abuse.
Examples of domestic violence include acts of intimidation, harassment, stalking, damage to property and unauthorised entry into the victim’s private home (where the home is not shared with the abuser) or place of work.
The Domestic Violence Act 116 of 1998 recognises that domestic abuse is a serious social evil and makes provision for victims to apply for protection orders from the Magistrate’s court. Minors may apply for protection orders on their own without their parents or guardians.
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Interim Protection Orders
Interim protection orders are designed to protect victims of domestic violence and they are often also referred to as “restraining orders” order “Domestic Violence Interdicts”. The main function of the order is to stop the alleged abuser from committing certain acts against his/her victim.
In terms of the Domestic Violence Act 116 of 1998, victims of domestic violence may apply at the local Magistrates Court for a protection order.
Click here for to view an Interim Protection order explainer infographic