Divorce and the law…
Does every divorce end up in a fight?
Due to the human dynamics between people it is almost impossible to predict how any divorce will go until it is done. Practice and experience have taught us that divorces are usually 80% emotional, 10% financial and only 10% legal. Being impartial, we observe from the outside and therefore can assist parties with guidance in order to finalise your divorce more fluently.
What if I do not want a divorce?
The days when you needed consent from both spouses to divorce are long gone. So are the days when you had to prove that your better half was the cause for the breakup or to prove that there was some kind of infidelity or funky monkey that you knew nothing about. If you find yourself in a situation where you really do not want a divorce, you can prolong the agony by playing for time or just incur more costs, but you can’t stop it. As long as one spouse avers that the marriage has been irretrievably broken down, the Divorce Court would grant the divorce.
Do I have choices when it comes to divorce?
Nowadays married couples have some form of choice as to the manner in which the divorce will be done. All roads lead to Rome they say and all will eventually end up in an Order of Divorce, but how you get there might differ. Here are some options that you have:
• Negotiation
Remember, at one stage your spouse was your one and only, so if at all possible, you should attempt to negotiate a settlement with your spouse. Once you have reached a middle/common ground with your settlement agreement, you could have an attorney draft the settlement agreement. As an added bonus your attorney will be able to bring your attention to legal matters that you might not be aware of such as taxes, outstanding debt, pension fund pay-outs or other related matters.
• Mediation
When every conversation with your spouse turns into a Greek Satire Play or a screaming contest, it might be wise to opt for mediation. During mediation both parties will have the opportunity to have their say in front of an unbiased (and non-emotional) mediator. The mediator stays impartial and there is no verdict or judgment in the end. The main goal of mediation is to guide the spouses within the framework of the law to make them reach their own settlement. We found that mediation before the final separation will not only speed up the divorce process but will leave both spouses with some dignity and hopefully some understanding of where things had gone haywire.
• Collaborative divorce
This is fairly new in South Africa and we have completed this a number of times with great success. This is where you and your spouse works with divorce attorneys, divorce coaches or psychologists, financial professionals and child specialists (if needed) to help you resolve your divorce issues before it goes to court. Once an agreement is reached, the attorneys draw up the settlement agreement and relevant court documentation before guiding you through the court system in order to finalise your divorce. Due to the fact that so many (specialised) people might be involved, this could turn out to be extremely expensive.
• Litigation
The final stage of a divorce is battled in a Divorce Court. This is the traditional way where you (and your spouse) need to go to court and present evidence that the marriage has been irretrievably broken down. Experience has taught us that few matters eventually end up being a full-on trial and the parties usually settle before the matter escalates to litigation.
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