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Divorce

Divorce may be one of the most painful and stressful times a person will experience as it may uproot their entire life and cause great emotional turmoil and distress. Divorce proceedings affect all members of the family and may have a profound impact on their physical, physiological, mental, emotional, and financial well-being.

At RBA Attorneys, we strive to provide you with a personalized legal experience, by providing you with all the necessary information so that you understand your rights and we seek to getting your divorce finalized as speedily, cost effectively and stress-free as possible whilst ensuring that your financial and other interests are protected at all times.

TYPES OF DIVORCES IN SOUTH AFRICA

UNOPPOSED DIVORCE

It is the quickest and most inexpensive type of divorce which requires both spouses to agree that they want a divorce and working together to agree on the terms of such a divorce, such as maintenance, the division of assets, primary residence, and care of the children.

The spouses may elect to consult with and appoint an impartial attorney to manage their interests and draft the official settlement agreement on their behalf containing the terms they have mutually agreed upon. The signed settlement is then made into an order of court.

If one of the Spouses wants a divorce and the other one agrees to it may seem as if it will result in an automatic Unopposed Divorce. However, just because the other Spouse has agreed to the Divorce does not automatically mean the Divorce will be unopposed.

The other Spouse might agree to the Divorce itself but may not agree to certain clauses in the Particulars of Claim or may be unhappy about the suggested division of assets. There is a possibility that they want custody of the minor children instead of it being awarded to the other spouse. They may find the parenting plan quite unsuitable for their lifestyle or maintenance amounts become a controversial issue.

 

So, when you phone your divorce attorneys and tell them that you want to consult with them about an Unopposed Divorce, be very sure that it really is Unopposed.  It is unwise to assume that your Spouse will agree to all the conditions just because they agree to the Divorce.

 

A divorce is only ever Unopposed when both Spouses agree not only to the divorce itself but also to every single clause in the Divorce Settlement Agreement. This does not happen nearly as often as it should and consequently divorces become costly because the Spouses cannot (through their Attorneys) reach an amicable Agreement. When there is discord and acrimony there is an Opposed Divorce and increased costs. A truly Unopposed Divorce is calmer, quicker, cheaper, and better for any Minor Children who may be involved.

CONTESTED DIVORCE

This occurs when spouses cannot agree on the terms and conditions of their divorce. The most common disagreements relate to maintenance, division of assets and childcare.

In contested divorces, both parties will normally appoint an attorney to act on their behalf.

A contested or opposed divorce is a hostile divorce where the spouses cannot agree on one or more aspects of the divorce.

Even if the Spouses agree on everything except one aspect, the divorce will be a contested divorce. If the Parties agree on the division of the assets, on where the minor children will live after the divorce, but they cannot agree whether the one spouse must pay spousal maintenance to the other, the divorce will be contested.

A typical contested divorce can take from a few months to a few years to be finalized as the Court must adjudicate the issues in dispute.

Issues that may be in dispute can include any of the following: -

  • Parental Rights and Responsibilities - issues such as who will be the primary caregiver of the Minor Children after the divorce, Child Maintenance, and contact for the non-primary caregiver;

  • Division of asserts in terms of the Ante-Nuptial Agreement (ANC) and /or of the joint estate;

  • Who will pay for what debt incurred during the marriage;

  • Spousal maintenance – if it is payable or not, and if so in what amount.

Whilst a Divorce Attorney / Divorce Lawyer normally charges a nominal or agreed fee for an uncontested divorce, a contested divorce is normally billed at an hourly rate. This is because an Attorney cannot easily give a cost estimation due to many variables such as temporary applications that may have to be brought and the issues in dispute.

These temporary applications may include Rule 43 Applications (High Court) or Section 58 Applications (Regional Courts) and these are applications for maintenance, Applications to Compel, Domestic Violence Applications and many more types of Applications.

With an opposed divorce, various experts must be briefed by the Attorneys. These experts may include Forensic Auditors, Actuaries, Industrial Psychologists, Clinical and Forensic Psychologists and others. If the Parties cannot afford these experts, it may be more difficult to present a Party’s case to the Courts.

Preparation of a divorce trial involves various procedures and includes the following: -

  • Preparation

  • Filing of Pleadings

  • Settlement

  • Discovery

  • Trial

It is always best for a spouse to be well prepared in order to get the best results in a divorce action which is why we normally ask our clients to supply at least the following information to assist us with our preparation: -

  • A timeline that details the Spouses’ lives together. We require a written narrative of as much detail as possible about the Spouses’ lives together.

  • A complete list of all family assets and liabilities (spreadsheet) and details pertaining to both Spouses’ monthly spending habits, and monthly income.

  • Marriage Certificate,

  • The Unabridged Birth Certificates of the Minor Children,

  • Ante-Nuptial Contract (if applicable).

 
MEDIATED DIVORCE

Mediated divorces are costlier and take longer to finalize than uncontested divorces. This type of divorce may also subject spouses and family members to higher levels of emotional distress, particularly in instances where one f the spouses does not want a divorce.

This type of divorce entails that spouse who are unable to agree to the terms of a divorce settlement employ the services of an attorney and/or professional mediator to help them negotiate and conclude such an agreement on terms which are satisfactory to them both.

The aim of the mediation is to assist the spouses in setting aside their short-term differences and focus on reaching a reasonable and amicable settlement that will allow them to move on with their lives and build a better future.

Once the parties have successfully mediated the dispute, their attorney or attorneys can draft the official settlement agreement, which is signed by both spouses and then made into an order of the court.

Mediation may reduce the cost associated with contested divorce proceedings and may be finalized in a matter of a few months.