Opposed 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 include 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 divorce can become a harmonious/unopposed divorce once the parties have settled.

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.

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 still favour mediation before litigation but collaborative divorces are becoming increasingly popular abroad. The biggest pro to collaborative divorces is 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 interests 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.

International Divorces

In order for parties to get divorced in South Africa, one of the spouses must be either domiciled in South Africa or ordinarily reside 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 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 are 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).

Financial Relief During A 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 dependent 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 couple’s desires, needs, financial position and future plans. Counselling sessions can be initiated by either one or both parties prior to the divorce being instituted.