Common Misconceptions about Divorce by Alexi Budin (Divorce and Family Law mediator)

This article originally appeared in the September issue of Your Family magazine.

1. Divorce is only an option for rich people

One of the most common misconceptions is that divorce has to be expensive. What is far less known, is there are various options available as to “how” to get divorced, and that each alternative has vastly different cost implications.

In every divorce there are certain material aspects that must be dealt with which are: The proprietary (monetary) aspect of divorce (which deals with the division of the marital assets and is directly related to whether there was an ANC or not), spousal maintenance claims (if and when applicable) and where there are children born of the marriage, the parental responsibilities and rights of each parent towards those children, and their joint legal obligation to provide child maintenance in respect of those children.

In South Africa there are two types of divorce:

1. Contested (opposed) Divorce

If the spouses are unable to reach agreement on one or more of the material aspects of their divorce, the parties will have no choice but to approach a High Court or Regional Magistrate to adjudicate their dispute. The court will then make a final ruling on the issues in dispute, at the end of the divorce trial. Unfortunately, divorce litigation is not only expensive, traumatic and lengthy (can take between 1-3 years), but it often creates more acrimony between the parties.

2.Unopposed Divorce

where the parties have worked together prior to the divorce, and are able to reach agreement on all the material aspects of the divorce, a formal divorce trial is not necessary. The parties will simply have an attorney or qualified mediator reduce this agreement to writing, in a document known as a settlement agreement. The matter will be placed on the unopposed divorce roll and the court will simply be requested to incorporate that settlement agreement (consent paper) in the decree of divorce.

Here’s the tricky part … at time that the various options need to be discussed and the most cost effective option decided, is often the very same time same time that emotions are at their most volatile causing rational decision making to be hampered. Try your very best to keep the channels of communication open, if there are few assets and little money available, it is counterintuitive to spend the little resources you may have on the high fees associated with an expensive and protracted litigious divorce.

2.Both spouses must agree to a divorce

Have you ever heard someone exclaim “I want to a divorce but my husband / wife refuses”?

In South African law, there is no legal requirement that a both spouses must agree to terminate their marriage. In the past, the grounds for divorce were based on one party being “guilty” or doing something wrong. The Divorce Act 70 of 1979, radically changed this position by adopting a “no fault” system of divorce.

This means that a divorce will now be granted if:

  • One of the parties believes that their marriage relationship has irretrievably broken down; and
  • the High Court or Regional Magistrates Court is satisfied the relationship between the parties has broken down to such an extent that there is no way or restoring a “normal” marriage.

Bottom line: It is the court that has the discretion to grant a divorce or not – not your spouse.

 3.Spousal Maintenance is a right

During marriage, spouses have a mutual obligation to support each other. This means that when one spouse is in need of financial support, housing, medical treatment, food, clothing etc. and the other spouse has the means to provide such support, there is an obligation to do so. However, when a marriage comes ends in divorce so to does this reciprocal duty to support your spouse. This means that the “wealthier” spouse isn’t  always automatically required to provide support after the divorce.

This doesn’t prevent you your partner from seeking maintenance – either by agreeing to the amount and duration of maintenance in your settlement agreement prior to the divorce or through the courts in a contested divorce. The party who claims maintenance will be required to prove why they are entitled to maintenance sought.

If you are seeking maintenance through the courts, remember that the court decides whether spousal maintenance should be paid at all, and if so the amount and duration that maintenance will be paid. The court will consider a list of factors, such as the duration of the marriage, the standard of living enjoyed by the parties during the marriage, the age and earning capacity of each party, the financial means and obligations of each party and even the conduct of each party during the breakdown of the marriage. The court may then order spousal maintenance for any specific period decided or until the death or remarriage of the spouse in whose favour such an order made.  Bear in mind, a court is far more likely to grant rehabilitative or permanent maintenance in the case of a middle- aged or elderly spouse of a long marriage, who raised the children, has been out of the job market for an extended period and has little prospect of finding employment. On the other hand, a spouse who earns a salary or has qualifications, has been married for a short period and does not have young children to care for at home instead of finding a job – may well have a more difficult time is justifying a claim for spousal maintenance.

4.You have to support yourself until the divorce is finalised, even if you don’t have any money.

Until a court grants you a decree of divorce, you and your spouse are still legally married, even when you have been living apart for a significant amount of time. The reciprocal duty of spouses to maintain one another still exists – the wealthier spouse is still legally required to give support during the divorce provided that there is a legitimate need for support on one hand and the ability or means to provide on the other.

Rule 43 of the High Court Rules and Rule 58 of the Magistrate’s Court Rules provide a quick and inexpensive way to assist either party seeking financial relief whilst divorce is pending.

In addition, the following interim(temporary) orders can be made up until the final divorce order is granted:

  • An order child maintenance
  • An order for spousal maintenance
  • An order enforcing specific payments or contribution to the payment of:
    • Monthly bond instalments for the matrimonial home or for accommodation costs such as monthly rental
    • Medical aid premiums
    • School fees
  • Delivery of certain property to the applicant such as a car or specific furniture
  • An order that the other spouse contribute to the other spouse’s legal fees and/or the cost of divorce.
  • Interim orders may also be used to secure a parent’s right to maintain contact with their child before a divorce is granted.

The important thing to remember is: The court acknowledges the fact that divorces may take years finalise, and that financially dependant spouses (who earns little or no income) may well find themselves in dire need of financial assistance. Interim relief (in terms of Rule 43 or Rule 58) therefore comes to the aid of such spouses up until the final divorce order is made.

5.The duty of child maintenance ends when your child turns 18

Both parents of a child have a legal duty to contribute to the reasonable maintenance of their children. This obligation applies to all children – whether adopted, born of the marriage or out of out of wedlock and from a prior or subsequent marriage or relationship. The definition of “reasonable” is case specific and therefore requires an individual assessment of the child’s monthly needs and the the parent’s ability to provide for such needs whilst taking into account the standard of living of the child’s parents.

Parents are obliged to utilise their income (salary) and if not sufficient their capital (assets) to support their children. This duty is not limited to children under the age of eighteen (minors) and continues until the child or young adult becomes self-sufficient.

This obligation continues post-divorce, and is either provided for in a settlement agreement – or in a contested matter, the court will determine the amount of maintenance.

However, this “joint obligation” does not mean that maintenance must be divided equally between the parents. The share of responsibility is decided based on their means and ability to pay. The amount of child maintenance payable by both parents is either decided by a court in contested matters or agreed to between the parents prior to divorce and set out in the settlement agreement. It is important to note, that once settlement agreement is incorporated into the decree of divorce it acquires the “teeth” of a court order, and non-compliance with such an order is an offence (contempt of court) and punishable by either a fine or imprisonment.

6.You only require a divorce for a civil marriage

South African law has evolved to serve our culturally diverse society.

In the past civil marriage was the only legally recognised and protected form of marriage. The Recognition of Customary Marriages Act, 1998 and the Civil Union Act, 2006 drastically altered this position. This means that if you and your partner have entered into a customary marriage or same-sex marriage, you will be enjoying the same benefits and legal protection as your civil marriage counterparts. Legal recognition is vital as specific spousal benefits automatically flow from such marriages – such as the right to inherit in the absence of a will, the right to claim maintenance in terms of the Maintenance of Surviving Spouses Act, 1990 and the creation of a reciprocal duty of support during the marriage.

Upon divorce: Partners to same-sex and customary marriages will be regulated by the very same law applicable to civil marriages – meaning such marriages may only be terminated by a decree of divorce by a High court or regional magistrates court. Currently customary marriage is the only form of potentially polygamous marriage recognised by law. There is much hope that in the future Hindu marriages and religious marriages will enjoy the same legal recognition and protection.

 

Alexi Budin

BA Law, BA Psych (Cum Laude), LLB, LLM (Cum Laude)

Divorce and Family Law Mediator

Email: lexi@budin.co.za

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