“What’s the only thing divorce proves? Whose mother was right in the first place” (Anon)
The festivities are over, the bills are coming in and everyone is
returning to reality. Couples who for most of the year only have to live
with each other after work hours, have suddenly spent a whole lot more
24/7 time in each other’s close company. Little irritations have
magnified, habits have got on each other’s nerves, in-laws visiting for
the annual family bun fight have heightened tensions…
Whatever the reasons, and whether only one party was at fault or both,
January’s worldwide reputation as “divorce month” applies equally here
in South Africa. Which means that the legal and personal risks
associated with divorce are peaking now, in January.
On the legal side of things a particular risk to be aware of is the
temptation for couples splitting on an “uncontested” (i.e. by mutual
agreement) basis to opt for a “DIY” divorce.
Beware, that’s a siren’s call…
The dangers of a DIY divorce
Divorce is full of both legal and practical pitfalls, and any mistakes a
divorcing couple makes now could well live with them, their children,
and their extended families for life.
The hard fact is that whilst DIY divorce may seem affordable and
workable, specific legal assistance and guidance is worth every cent it
costs – and particularly in uncontested matters the cost of proper legal
help certainly won’t break the bank. Without such advice, the average
couple risks the exact opposite of “affordable” in the form of a great
deal more expense (not to mention stress and heartache) than had they
consulted an attorney upfront.
To illustrate some of the many relevant issues the couple must take into account –
- Formalities: Getting divorced means complying
with a list of formalities and requirements, and appearance in either
the High Court or the Divorce Court. Getting anything wrong here is a
recipe for disaster.
- Consent paper: A settlement agreement (often
called a “deed of settlement” or “consent paper”), setting out what the
couple has agreed to regarding children, maintenance, division of assets
etc, should be made an order of court to give it the status of an
enforceable judgment. The agreement should cover everything important,
clearly and unambiguously – overlooking something vital (easy for the
layperson to do) will come back to haunt everyone.
- Children: The most vulnerable parties in any
familial breakup, children enjoy special protections in our law, and
parents need to take into account questions of parental responsibilities
and rights including “care and contact” (the new terms for “custody and
access”), guardianship, maintenance, formal “parenting plans”, health
care and the like.
- Maintenance: In addition to child maintenance,
one spouse may have a claim on the other for spousal maintenance, either
on an interim basis or longer-term.
- Financial implications and division of assets:
Particularly where valuable assets are involved (a house or other
property perhaps, or rights to a pension fund) the divorcing couple
should agree on a split, on how property transfers will work, who will
pay for what, who will assume financial obligations like home bonds etc.
Which “marital regime” the couple was married under becomes important
here, as does the question of whether or not there is an ANC
(ante-nuptial contract) in place. A whole host of other legal and
practical issues are also at stake.
A final thought on controlling costs…
If you have a particular need to control costs, be open with your
attorney and ask for advice on whether you can minimise them in any way.
