Divorce in South Africa: Your Best Options
Most South Africans divorce within the first five to nine years of marriage and most of them are initiated by women.
The most common reason for divorce in South Africa is simply that couples break up, closely followed by drug and alcohol abuse (cocaine use is prevalent), physical abuse and unemployment.
More recently, statistics show that financial difficulties are coming to light in the majority of divorce cases filed in the second half of 2007 to early 2008, while infidelity and miscommunication are mentioned less.
dissolution of marriages
As in most countries, married couples can dissolve their marriage through divorce, leaving the parties to legally remarry at a later date. The process depends on the state of the marriage. In South Africa, this is usually a civil, community property or non-community property marriage. Some South African marriages are also customary marriages.
A civil marriage can be dissolved according to the Divorce Law. Customary marriages are dissolved according to civil law but also according to custom and tradition.
address the issues
Before filing for divorce, carefully consider your options:
* Can you reconcile?
* Do you need a lawyer?
* Can you accept a division of assets?
* Child support and custody?
* What about alimony?
* What are the costs?
Reconciliation
Most good lawyers will advise the petitioner to seek advice and explore reconciliation before filing for divorce, as procedures can be lengthy and expensive if both parties disagree.
There are many paths to follow regarding reconciliation. FAMSA offers an excellent advisory and arbitration service to couples facing divorce.
choose a lawyer
A petitioner should first ask if he needs a lawyer. If a couple agrees to proceed with the divorce, the petitioner can apply for divorce in the local court for a fee of R120, a copy of their marriage certificate, a copy of their identification and their completed divorce papers.
If a couple cannot agree on divorce issues, it is advisable to seek legal guidance, but keep in mind that each divorce case is different. Ask your lawyer about his specializations, his approach to divorce: is he tactical or aggressive? Most importantly, ask them to outline their fee structure up front.
Can you agree?
If the couple can agree on property division, maintenance and child custody, then filing in the local court is the easiest option. Usually the court awards a 50:50 split anyway, so fighting to the front just costs you money. Sit back and be practical. They both have to start over and what they lose in legal fees could be put to better use.
If you can agree, draft the agreement and sign it and have it witnessed and attach it to your divorce petition. (Agreement)
Custody of minor children
Custody must be agreed upon before a court will grant a divorce. Consider what is best for your children rationally. In most cases, the woman is usually awarded custody; however, it is not uncommon for a couple to agree that custody be awarded to the father. In African customary law, the father is usually the natural guardian of the children.
Regardless of custody, maintenance and visitation must be agreed upon and where a couple cannot or will not agree, the court will decide bearing in mind that all parents have a duty to support their children, including all illegitimate children.
Support issues can be directed to support court after the divorce is final.
Alimony
It is rare in South Africa for alimony to be awarded unless the spouse can show that they are incapable of earning a living, as they have been spouses/parents since the inception of the marriage and have no visible means of support.
Alimony is generally agreed upon by the couple for a specified period and is taken into account with the conciliation agreement.
The costs
Getting divorced can be very expensive. It is advisable to file for divorce yourself through the local magistrates court to keep costs to a minimum. Agreeing on arrangement, custody and maintenance in advance is the best solution in South Africa as it avoids the need for a lawyer and legal fees.
Newly released figures showed last year’s divorce rate was the lowest yet, and analysts say economic uncertainty has made unhappily married couples reluctant to part ways. Few couples divorce during tough financial times because attorney fees are simply too expensive, often creating more financial problems for the couple as they enter their new lives.
the best options
Go to your local magistrates court and ask for their help. It is reasonable and just as efficient.