Marriage and the end of a marriage: Divorce: What to consider before you proceed.
Sadly; one of the matters that we get many queries about; is the issue of divorce.
Most of us get married for life; but many marriages end in divorce.
A divorce order puts an end to a marriage contract and around 50% of all marriages end in divorce; so it is an important aspect of our social lives and must be approached legally and professionally.
Under the current SA law on divorce; if one of the parties to a marriage feels the marriage is over; and there is no reasonable prospect of normal marriage relationship again; they have the necessary grounds for a divorce summons.
The idea; is that if a marriage is over; it is a social problem; and parties should not be forced to stay in a marriage which is unhappy or which has no prospect of being turned around. That would not be fair on either of the parties to the marriage or in fact their children. To live in a state of war or even a cold war is not ideal for social cohesion.
We always tell a client that the decision to get divorced is their decision; and their decision alone. They can get as much advice as they like; but the final decision is theirs. The reason we say this is that we have found over very many years that people are not necessarily happier after they get divorced. They always think that they will be happier; but often they are not; there are financial difficulties, difficulties in obtaining maintenance from their ex; and also issues regarding custody and access. They are therefore advised to think carefully before proceeding with a divorce; and to perhaps seek professional mediation advice of even marital counselling; if they believe it will help.
Once however they decide to get divorced; certain processes have to be followed.
Basically there are either undefended divorces or defended divorces.
It is ALWAYS preferable to get an undefended divorce. Undefended divorces cost about R 10000.00. Defended divorces can cost tens and even hundreds of thousands of Rands; and is very seldom money well spent unless you have very deep pockets.
We will thus always attempt on behalf of our clients to negotiate the terms of a divorce and try and get an agreement of settlement, also called a consent paper, drawn up, agreed to and signed by the parties.
It makes absolutely no sense to fight about financial and other issues if the end result will be a settlement anyway; as settlement invariably happens; even in opposed or defended divorces.
Certain things should be borne in mind:
- If one party wants a divorce; it will invariably be granted; it is only the terms of the divorce order that must be settled.
- Generally speaking; custody and care of babies and young children; will be awarded to a mother; subject to father’s rights of reasonable access. Joint custody is also a possibility.
- The non-custodial parent will be ordered to pay maintenance for his/her children. The amount depends on the needs of the child and the financial ability of BOTH parents.
- The divorce court is likely to make an order for a financial split which is fair to both parties.
- These issues are normally always sorted out by the court, by agreement between the parties, before the divorce order is granted.
It is clear therefore that it is in everyone’s best interest to settle a divorce early; and before the lawyers have taken a major share of what you are fighting about; i.e. your money.
Next time; we will look at the divorce process itself.
Remember that we will, as stated on our website, always quote you and agree a fee before providing you with the requested advice of service.
The Legal Advice Office Team.