It is advisable that if you choose to live apart, you draw up a Separation Agreement.

• Mediation is cheaper and quicker than litigation. 
• Family focussed towards better communication for the benefit of the children.

• Mediation is the only option that looks beyond divorce and take into account the after affects of divorce. 

• Uncontested divorce is more affordable and quicker than a contested divorce.
• Regional Court is less expensive than the High Court.

• You can institute divorce on your own by approaching your local Regional Court.
• Consult an attorney or a mediator if you have children, assets, or retirement annuities or pension funds. 

• Try to work out differences prior to proceeding with a divorce. 
• Mediation could be a good option to try resolve some issues.

• Contested divorces are charged at per hour rate.
• Legal expenses can increase when expert witnesses like forensic auditors, sworn appraisers, and clinical or industrial psychologists are called to testify in the trial.

Separation means the end of an intimate marriage relationship.

During separation, the following issues can be addressed:

Division of assets and debts

Where the Children will stay

Visitation of children

Child support

Spousal support

Parenting Plan can be set up

Separation Agreement can be drawn up

No, in the eyes of the law, you are still married.

Legal separation does not exist in South Africa even if you are no longer living with your husband and not divorced. According to the law, you are still married. You can divorce in either the Regional Court of the Magistrate Court having jurisdiction in your area or in the High Court

Divorce Act 70 of 1979 lays down the circumstances that a court may accept as evidence of the irretrievable breakdown of a marriage: The parties have not lived together as husband and wife for a continued period of at least one year immediately prior to the date issuing summons for divorce

When a marriage relationship is permanently broken down and believed to be

beyond repair, it is referred to as an irretrievable breakdown. Marriages may

break down for many reasons, not necessarily through misconduct by either of

the parties. 

There are many circumstances that can lead to the permanent breakdown of a marriage.

• Living apart for more than one year
• Malicious desertion
• Alcoholism or drug addiction
• When one spouse is a habitual criminal
• Imprisonment
• Mental illness
• Adultery
• Assault, cruelty or domestic violence

A parenting plan is a written document outlining how parents will raise their children following separation or divorce. 

It can concentrate on discussing parental responsibilities such as:

How choices about the child are made (for example, jointly or individually but in consultation with the other parent)

How information between parents is shared

How much time will each parent spend with the child?

How parental conflicts will be settled and how other parenting concerns will be addressed

A parenting plan should reflect the child's interests and requirements.

I cannot tell you what the right answer is, and there is no clear-cut or easy answer.

• Maybe you have begun to imagine life without your spouse. How would you feel about that? Would the thought upset you?
• You might feel so hopeless and discouraged about the marriage that you can’t see any alternative to giving up.
• Often there is betrayal in the maraige.
• An abusive relationship
• No intimacy in relationship
• Addiction problems
• Mental illness that is going untreated and affecting the relationship.
• Differences in priorities
• Infidelity
• Lack of communication

South African law does not recognize common law marriages (cohabitation) living together, or domestic partnership, as a legal relationship. 

Therefore, there is no law governing the rights of cohabiting partners. Cohabitation is usually used to describe two people, of either gender, who live together but are not married. 

These relationships were referred to as "extramarital cohabitation" in the past. 

Simply put, unmarried men and women do not have the same rights and responsibilities as married couples. 

Because the law does not recognize their connection as a marriage, the privileges and responsibilities that marriage brings do not apply. 

This is true regardless of the length of the relationship. Contrary to what most people think, living with your partner for a certain amount of time does not make you legally married with certain rights. 

In South Africa, more and more people are living together, and the number of couples living together goes up by about 100% every year.

Cohabiting is not as safe as marriage, which is governed by laws that protect the people involved. 

For example, the Interstate Succession Act says that a cohabitant's partner has no right to inherit when the cohabitant dies without a valid will. A person who lives with someone else can't also use the Maintenance of Surviving Spouses Act to get money after that person dies. Also, people who live together are not required to support each other, and they have no legal right to ask for support. Most South African banks don't let people who live together open joint accounts. Most of the time, one partner will open an account, but the other will be able to co-sign on it. So, if there is an overdraft or loan, the partner whose name is on the bank account will have to pay back the money.

As it stands, the law isn't good enough because it doesn't treat people who live together the same way as people who are married or in a civil union. 

The draft Domestic Partnerships Bill, which was released in January 2008, will soon make changes to the South African law on living together. 

But until the bill becomes law, the status of people who live together in South Africa will be very different from that of people who are married or in a civil union.

With contested divorce, a roundtable meeting will usually be arranged for

settlement discussions.

Both parties’ legal teams (consisting of attorneys and sometimes also

Advocates) will meet in a boardroom or office. The parties will usually sit in

separate waiting areas. 

During the course of the roundtable meeting, eachperson will be called by his/her own legal team to discuss the progress and to

give further instructions. 

The following documents will usually be requested by your divorce attorney:

• Copy of Your ID Document and/or Passport
• Proof of Your Income Tax Number
• Proof of Your Residential Address
• Copy of Your Antenuptial Contract (if any)
• Your Marriage Certificate

Depending on the contents of your divorce application, further documents may

also be requested, for example: updated valuations of immovable property, a

list of assets and liabilities, etc.

It is possible, but because divorce law can be complicated, it is always

recommended to get legal assistance from an admitted attorney — even if you

think your divorce will be uncontested

it is advisable for them to draw up a Separation Agreement to deal with their financial issues. The areas that a Separation Agreement would deal with are specific to the couple but could include among other things:

• Spousal & Children Maintenance
• Medical Aid
• School Fees
• Marital Debt
• Payment of the Home Expenses 
• Parenting plan can also be drawn up where there are minor children involved.

Yes, on signing the separation agreement, the document would become valid and binding on the separated couple. The document would also, as a consequence, be enforceable under the law of contracts. As a result, a spouse could approach the court for assistance in relation to the other spouse's breach.

1. It allows parties to live separately while still being married; It prevents future argument;
2. It keeps the relationship amicable;
3. It could form the basis of an eventual consent or settlement in divorce;
4. It could stabilise the position whilst divorce proceeding is ongoing.

A Divorce is the legal dissolution or termination of a marriage whereas a legal separation does not put an end to the marriage, but rather enables spouses to live separately yet still remain married. I.e. Separation means that the individuals are still married in the eyes of the law. 

So the key aspect of being separated as opposed to divorced, is that when a couple is separated, they are still seen as legally married in the eyes of the law. This also means that while separated, one cannot remarry. 

You may have reached a point where you are unable to speak with each other at all and you cannot agree on anything involving your home, kids, or finances.

You can resolve these disagreements through mediation without going to court. You will save time, money, and stress if you can resolve your differences. Mediation will shorten the regular divorce process and lower the associated expenditures.

Technology improvements have made it possible to settle disputes online instead of having to go to a specific place for mediation.

Mediation offers a collaborative, interactive, online dispute resolution experience for the first time, keeping parties more concentrated than ever on resolving their separation-related difficulties. 

Both people will feel a wide range of emotions, such as loss, sadness, grief, frustration, and a sense of failing. Mediation is a useful method for divorcing families to try to settle any disputes and create plans for the future.

We mediate all issues related to family law, including divorce and separation, alimony, property distribution, and parental rights and obligations.

Divorce and separation

Our Divorce mediators are specialists in the field of Divorce and Separation and can assist you in separating and settling all elements of your divorce or separation.

Parenting Plans

Our mediators have extensive experience resolving custody and visitation disputes between parents. We assist you in mediating a parenting plan suited to your situation.

Maintenance

Our mediators have extensive experience in matters related to both spousal and child maintenance. We are able to determine your maintenance needs and means to pay. 

Yes, we can accommodate both parties from anywhere in South Africa in a timely manner via Zoom or other platform that clients are comfortable using. All communication is kept confidential.

Absolutely. 

In many cases, parties initiate mediation during the litigation process. In the majority of these cases, the parties are able to reach a settlement and resolve their differences.

No case is too complicated to be settled through mediation. 

During the mediation process, the people involved often talk to outside experts like accountants, financial planners, and lawyers.

Everything depends on how complicated the issues in question are and how cooperative the parties are. 

Most of the time, we have two one-hour sessions with each party separately and then a 90-minute session with everyone together. These sessions are usually spaced over a period of two days. If the mediation is successful, the final Settlement Agreement / Parenting Plan is usually provided to the parties within 48 hours. 

Yes, mediation is becoming more and more compulsory, and our courts have ruled in a number of cases that a deliberate unwillingness to mediate will result in such a party having to pay all the legal costs.

Yes. The courts encourage parties to mediate when there are children involved. In fact, some legislation, like the Children’s Act, says that parties must mediate in certain circumstances.

I cannot tell you what the right answer is, and there is no clear-cut or easy answer.

• Maybe you have begun to imagine life without your spouse. How would you feel about that? Would the thought upset you?
• You might feel so hopeless and discouraged about the marriage that you can’t see any alternative to giving up.
• Often there is betrayal in the maraige.
• An abusive relationship
• No intimacy in relationship
• Addiction problems
• Mental illness that is going untreated and affecting the relationship.
• Differences in priorities
• Infidelity
• Lack of communication

Always retain the services of an experienced divorce attorney. 

Depending on the complexity of the divorce (division of assets, care and contact over children, etc.), it is recommended to delegate the drafting of the necessary documents (e.g., custody and visitation agreements) to someone with legal expertise.

If the divorce is not contested and both parties would like to separate and divorce amicably, it can be done with a mediator. 

A parenting plan is a written document outlining how parents will raise their children following separation or divorce. 

It can concentrate on discussing parental responsibilities such as:

How choices about the child are made (for example, jointly or individually but in consultation with the other parent)

How information between parents is shared

How much time will each parent spend with the child?

How parental conflicts will be settled and how other parenting concerns will be addressed

A parenting plan should reflect the child's interests and requirements.

The final step of the divorce process will always take place in a Court and in

front of a Magistrate or Judge. 

In uncontested divorce matters only one party

will need to appear at the hearing. 

With contested divorce, a roundtable meeting will usually be arranged for

settlement discussions.

Both parties’ legal teams (consisting of attorneys and sometimes also

Advocates) will meet in a boardroom or office. The parties will usually sit in

separate waiting areas. 

During the course of the roundtable meeting, eachperson will be called by his/her own legal team to discuss the progress and to

give further instructions. 

1. ​Complete our questionnaire online to enable us to determine the issues to be mediated.
2. Schedule a day and time for your mediation session.
3. Once you have booked your appointment, you will be required to make a payment for the session or you can calim your voucher.
4. Enter the meeting via the Zoom or Teams link sent via email.

Three things help kids of any age adjust to their parents' divorce: a strong relationship with both parents, good parenting, and not being exposed to too much conflict.

The hard part for the parents is making it happen.

Respect the relationship between your child and the other parent. If you badmouth the other parent in front of your children, you are basically putting less value on the relationship between your child and the other parent.

Speak to our mediatior to help you set up a parenting plan to assist your child throught he process.

1. Contested Divorce

2. Uncontested Divorce

3. Mediated Divorce

Contested Divorce

Contested divorces can inflict emotional and financial trauma on all family members.

Contested divorces occur when spouses can't agree on terms. Most disputes involve child care, maintenance, and asset division. In certain circumstances, one or both spouses refuse to settle out of emotion.

In a contentious divorce, both spouses appear in court, and the judge decides their divorce. This can cause substantial legal expenses and emotional trauma and take three years or longer to resolve.

Uncontested Divorce

This alternative is quick, cheap, and reduces family stress.

In an uncontested divorce, spouses agree on terms. This involves judgments on maintenance, asset division, and child care.

Both spouses can consult and appoint an unbiased counsel to protect their interests and prepare the final settlement agreement, which is signed by both and made a court order.

Uncontested divorces take weeks to finalize.

Mediated Divorce

In this sort of divorce, couples who can't agree on a settlement hire an attorney and/or mediator to help them negotiate.

Mediators are unbiased, trained professionals who assist couples in setting aside short-term conflicts and negotiating an acceptable settlement so they may start a new future. Attorneys who give legal advice during mediation usually appoint mediators.

Once the mediator has assisted the couples in reaching an agreement, their attorney(s) can draft the official settlement agreement, which must be signed by both spouses and made a court order.

Mediation can lower divorce costs. Mediated divorces usually take three months.

Priority differences

Priorities, which many men and women discuss before marriage, can become huge concerns later.

Religion, culture, and ethnicity

Different religious, cultural, or ethnic couples may ignore each other's expectations, producing anger. Most parents wish for their children to adopt their own customs, which can cause conflict.

Family duties

Spouses rarely co-parent effectively. Differing parenting styles can cause marriage problems. One parent may be strict, while the other is lenient. Children may favor one parent over the other, producing stress and animosity in the marriage.

Finances

Marriages suffer when times are tough. Whether a couple is happy or not, they may argue about money. If they don't solve the problem, it can put extra stress on their relationship.

Incompatibility

Emotionally, psychologically, and sexually, men and women differ. Children, health issues, and occupations change as a marriage progresses. These can affect a couple's sexual relationship. If a partner is not being physically gratified, he or she will look elsewhere. Sexual dissatisfaction usually causes divorce.

Addiction

Addiction of any kind is like a black hole, destroying everything in its path and putting undue strain on relationships. Whether the addiction be to drink, narcotics, or, increasingly, pornography or social networking, the effect is the same.

Social networking

Social media is hurting privacy and family connections more and more since it blurs the boundaries between the public and private worlds. These media venues encourage careless posting, commenting, and sharing. When spouses spend a lot of time on social networks instead of with their families, they often grow apart in a way that can't be fixed and leads to divorce.

Social media posts aren't as private as many imagine, and flirting is a leading cause of divorce. With a multiplicity of profiles just a click away, it has made it incredibly easy for folks to see if the grass is greener on the other side.

Infidelity

Infidelity, adultery, or "cheating" is a leading cause of divorce in South Africa. Adultery is purposeful and malicious extramarital sex that destroys a marriage. Infidelity damages the relationship's foundation—trust—and violates mutually established rules or boundaries.

Abuse

Abuse is one of the main reasons for divorce. Physical, verbal, emotional, psychological, and financial abuse affect all age, ethnic, and class groups. It can mean telling a child they are not wanted, calling them names, ignoring them, locking them in a room, listening in on their phone calls, or not giving them money.

Abuse can occur in heterosexual, same-sex, and parent-child relationships. Men are assaulted verbally, emotionally, and sometimes violently, just like women and children.

Misunderstanding

a Lack of communication causes 70% of divorces. Without adequate communication, no relationship can endure. Good communication doesn't require agreement. Couples with communication problems that lead to divorce generally can't compromise. A lack of communication in any area of a marriage can do major damage to the partnership. Many couples lack financial communication, leading to troubles and fights.

I cannot tell you what the right answer is, and there is no clear-cut or easy answer.

• Maybe you have begun to imagine life without your spouse. How would you feel about that? Would the thought upset you?
• You might feel so hopeless and discouraged about the marriage that you can’t see any alternative to giving up.
• Often there is betrayal in the maraige.
• An abusive relationship
• No intimacy in relationship
• Addiction problems
• Mental illness that is going untreated and affecting the relationship.
• Differences in priorities
• Infidelity
• Lack of communication

If you can make it happen, an uncontested divorce is the best alternative for your divorce. In an uncontested divorce, you and your spouse reach an agreement on the terms of your divorce. 

Both of you will consult the same attorney, who will be objective and neutral. There is no formal trial, and the only party to appear in court is the plaintiff. In an uncontested divorce, the two people agree ahead of time on how their assets will be split and, if there are children, which parent will take care of them most of the time and which will take care of them on alternate weeks. 

The settlement agreement is then created with the assistance of the attorney, signed by both parties, and made a court order. 

Without a doubt, an uncontested divorce is the least expensive type of divorce.

Always retain the services of an experienced divorce attorney with excellent time management and interpersonal skills. 

Someone who will assist you with your divorce both legally and emotionally.

Depending on the complexity of the divorce (division of assets, care and contact over children, etc.), it is recommended to delegate the drafting of the necessary documents (e.g., custody and visitation agreements) to someone with legal expertise.

A divorce by default is a type of uncontested divorce. A court will grant a divorce by default if you serve your spouse with a divorce summons and he or she fails to respond. 

In a divorce by default, the person who wants the divorce writes out his or her claims in a summons, with or without the help of an attorney. 

A court issues the summons, which is then served on the defendant by the sheriff.

The summons indicates the number of days the defendant has to file a notice of intent to defend.

If the defendant fails to respond within the specified time with a notice of defense, the plaintiff may petition the court to enter the divorce on the court roll and grant the divorce based on the defendant's default. In this instance, only the plaintiff is present in court.

Some courts require that a notice of set-down (a document indicating where and when the divorce will be heard) be delivered to the defendant in person or via registered mail. Contacting your spouse to find out why he or she has not defended himself or herself may be a good option. 

Although you can technically seek a default divorce when the time restriction in the summons expires without a response from the defendant, your spouse could come back and try to get the divorce set aside by alleging that the delivery was improper and that they had a solid reason for missing the deadline. 

Therefore, it is preferable to afford your spouse every opportunity to answer. You and your spouse may also opt for a default divorce.

Uncontested divorce is the best and most cost effective for all parties concerned. It can be finalized within 6–12 weeks. 

The following documents will usually be requested by your divorce attorney:

• Copy of Your ID Document and/or Passport
• Proof of Your Income Tax Number
• Proof of Your Residential Address
• Copy of Your Antenuptial Contract (if any)
• Your Marriage Certificate

Depending on the contents of your divorce application, further documents may

also be requested, for example: updated valuations of immovable property, a

list of assets and liabilities, etc.

When a marriage relationship is permanently broken down and believed to be

beyond repair, it is referred to as an irretrievable breakdown. Marriages may

break down for many reasons, not necessarily through misconduct by either of

the parties. 

There are many circumstances that can lead to the permanent breakdown of a marriage.

• Living apart for more than one year
• Malicious desertion
• Alcoholism or drug addiction
• When one spouse is a habitual criminal
• Imprisonment
• Mental illness
• Adultery
• Assault, cruelty or domestic violence

It is possible, but because divorce law can be complicated, it is always

recommended to get legal assistance from an admitted attorney — even if you

think your divorce will be uncontested

The Regional Court and High Court with jurisdiction (power) in the area where

either of the parties is domiciled (permanently residing), will have jurisdiction to

hear the divorce.

The final step of the divorce process will always take place in a Court and in

front of a Magistrate or Judge. 

In uncontested divorce matters only one party

will need to appear at the hearing. 

With contested divorce, a roundtable meeting will usually be arranged for

settlement discussions.

Both parties’ legal teams (consisting of attorneys and sometimes also

Advocates) will meet in a boardroom or office. The parties will usually sit in

separate waiting areas. 

During the course of the roundtable meeting, eachperson will be called by his/her own legal team to discuss the progress and to

give further instructions. 

The Plaintiff is the person who starts the proceedings. His/her name will be

mentioned first on the Combined Summons, further pleadings (formal court

documents) and notices.

In divorce proceedings, the Defendant is the Plaintiff’s spouse.

Depending on the circumstances, we would recomend  a roundtable meeting or a divorce

mediation, to issue summons on a contested basis or to continue to the next step of the contested divorce process.

A court (the High Court or the Regional Court of the Magistrates Courts) has jurisdiction in a divorce case if one or both of the following are true: • one or both parties lived in the court's area of jurisdiction on the date the case was filed; or

• Lived in South Africa for at least a year before the date in question.

You do not have to get your spouse's permission to get a divorce. If your spouse is not willing to get divorced, you can get a divorce granted without his or her consent.

The uncontested divorce is the best and most cost effective for all parties concerned. It can be finalised within 4 weeks. If a divorce is contested it may take between 2 - 3 years, but most contested divorces do settle long before they go on trial.

With a DIY divorce, the agreeing parties fill out an online questionnaire, a lawyer reviews the submission, and once it is confirmed that everything is correct, the relevant documents are returned—sometimes within 48 hours. The couple can then go to court with the correct paperwork.

When applying for a divorce, you will need certified copies of the following documents:

1. Your official South African identity document,
2. Marriage certificate,
3. Your children's birth certificates (if any),
4. Your ante-nuptial agreement (if any),

You will, however, need to satisfy the court that the marriage has broken down irretrievably or that other grounds exist for the granting of a divorce, for example, mental illness. While you do not have to obtain your spouse's consent, you are still required to notify your spouse of your intention to get divorced

A DIY divorce is suitable for South Africans that are both in agreement on the settlement terms of the divorce?

There are no disputes regarding your children; and

You are prepared to do all the admin yourself.

Yes, as long as you both agree on your terms of divorce.

No, it is usually just a few steps. An online form will be filled out and a few questions asked. The paperwork will be processed, and the agreement will be sent to you. If a spouse changes their mind and wants to contest the divorce, it would be necessary to speak to our mediator or attorney to assist you further.

DIY divorce is the most cost-effective divorce. The process is easy, and costs are around R1000 in South Africa. NB: This will not cover the sheriff's fees or any extra court fees.

1. Fill in the easy online application form with a few questions that are asked. 
2. Make the payment
3. Recieve the documents and filing instructions.

When one or both spouses disagree about the terms and conditions of the divorce, this is called a "disputed divorce."

Support for children and spouses, division of property, assets and debts, child care, primary residence, and other things often cause fights.

The following procedures would be followed:

1. pleadings
2. application for and set down of trial date
3. discovery of documents
4. further discovery and particulars
5. pre-trial conference
6. trial
7. judgment

It can be completed in four weeks. If a divorce is contested, it may take two to three years; however, the majority of contested divorces settle prior to trial. Both civil and traditional marriages must be dissolved by a court.

Yes, mediation is becoming more and more compulsory, and our courts have ruled in a number of cases that a deliberate unwillingness to mediate will result in such a party having to pay all the legal costs.

Your mediator or attorney will draft a settlement agreement and a parenting plan (when there are children involved). Both you and your spouse or partner will then sign the agreement. If you don't have an appointed attorney, your mediator will draft the necessary documents to conclude the divorce. One of the parties must ultimately appear in court to conclude the divorce.

• Trying to covertly conceal unaccounted-for money.
• Implementing complex accounting schemes to covertly extract recorded cash.
• Engaging a co-conspirator to manipulate the timing of revenue (income) or accounts receivable (invoicing creditors).
• Transferring ownership of assets to family or friends to hold until the divorce is final
• Lying under oath.

Here are some of the oldest techniques known to man:

Accounting:

Do away with financial accounting programs.

Maintain that a computer with vital financial documents unexpectedly crashed. Eliminate the hard drive in an attempt to recover the data, but without success.

Acquaint yourself with a financial counselor and travel for business (to set up remote schemes).

Assets:

Report an unusual drop in the value of marital and/or corporate assets and investments in order to avoid suspicion.

Donate assets to relatives and friends (to be reversed after the divorce).

Sell assets to relatives or acquaintances posing as independent purchasers (to share profits after the divorce).

Banking:

Maintain or acquire complete control over bank accounts, banking information, and passwords.

To move funds, open multiple personal or company bank accounts.

To conceal funds, open bank accounts in the name of a child or a friend.

Business:

Deny reimbursement for expenses used for business purposes (postpone until after the divorce).

Overpay debtors or pay suppliers in advance (which can be refunded after the divorce).

Include relatives and acquaintances on the payroll or pay them for "consulting services" (to be paid back to you later).

Delay signing new contracts that might raise revenue.

Expenses:

Spend excessively on items such as recreational goods, automobiles, etc. (which can be sold again).

Buy art or collectors' items (to be sold again at a later point) (to be sold again at a later stage).

acquire many cell phones or numbers within a short time (to hide interactions and dealings).

Make substantial payments on debt (to enhance liabilities and stash the cash).

Take cash withdrawals on debit cards (they show on statements) (they show on statements).

Pay obligations to family and friends (only to be paid back after the divorce)

Income:

Suffer an inexplicable decline in income while maintaining the same expenditures.

Avoid getting commissions and bonuses (postpone until after the divorce).

Refuse a promotion (to be back-dated and paid after the divorce).

Legal:

Insist that your spouse sign legal documents without thoroughly reviewing them.

Propose a mutual power of attorney for estate planning purposes (to gain control).

Establish methods for the transfer of funds to nations with less stringent monetary regulations.

Personal:

Complain about money or debt to avoid suspicions in the future.

Be unclear or misleading regarding financial matters.

Accept accounts and statements at a private mailing or post office box.

maintain the abrupt failure of a company.

Claim entitlement earlier.

If you gamble frequently, you should fund a casino account.

Tax: 

Submit fake tax returns that understate income.

overpaying the government (to be refunded after the divorce).

One should never rush into dividing up pension and/or retirement funds in a divorce settlement.

It is crucial that the settlement agreements be drawn up by an attorney who specializes in divorce law. 

The division of pension funds all depends on your marital contract. What does your contract say?

Marriages in community of property

The pension interests of the spouses will form part of the parties’ joint estate, and the non-member spouse will be entitled to claim 50% of the pension interest of the member as of the date of the divorce.

Marriages out of community of property with accrual

Where couples are married out of community of property with the accrual, the spouse’s pension fund value will be taken into consideration in order to determine the value of his or her estate for purposes of the accrual calculation only. 

Marriages out of community property without accrual before 1 Nov 1984

The spouses retain their own separate estates, and there is no sharing of assets at divorce unless a court orders a redistribution of assets in terms of Section 7(3) of the Divorce Act. A pension interest forms part of the spouse’s estate and will then form part of the assets if redistribution is ordered by the court. The parties may also agree to share the pension interest in a settlement agreement.

Marriages out of community of property without accrual after 1 Nov 1984

Here, the spouses retain their own separate estates, and there is no sharing of assets at divorce. Any share in the pension interest will have to take place by mutual consent. The parties may also agree to share the pension interest in a settlement agreement.

A parenting plan is a written document outlining how parents will raise their children following separation or divorce. 

It can concentrate on discussing parental responsibilities such as:

How choices about the child are made (for example, jointly or individually but in consultation with the other parent)

How information between parents is shared

How much time will each parent spend with the child?

How parental conflicts will be settled and how other parenting concerns will be addressed

A parenting plan should reflect the child's interests and requirements.

The following documents will usually be requested by your divorce attorney:

• Copy of Your ID Document and/or Passport
• Proof of Your Income Tax Number
• Proof of Your Residential Address
• Copy of Your Antenuptial Contract (if any)
• Your Marriage Certificate

Depending on the contents of your divorce application, further documents may

also be requested, for example: updated valuations of immovable property, a

list of assets and liabilities, etc.

When a marriage relationship is permanently broken down and believed to be

beyond repair, it is referred to as an irretrievable breakdown. Marriages may

break down for many reasons, not necessarily through misconduct by either of

the parties. 

There are many circumstances that can lead to the permanent breakdown of a marriage.

• Living apart for more than one year
• Malicious desertion
• Alcoholism or drug addiction
• When one spouse is a habitual criminal
• Imprisonment
• Mental illness
• Adultery
• Assault, cruelty or domestic violence

It is possible, but because divorce law can be complicated, it is always

recommended to get legal assistance from an admitted attorney — even if you

think your divorce will be uncontested

The Regional Court and High Court with jurisdiction (power) in the area where

either of the parties is domiciled (permanently residing), will have jurisdiction to

hear the divorce.

The final step of the divorce process will always take place in a Court and in

front of a Magistrate or Judge. 

In uncontested divorce matters only one party

will need to appear at the hearing. 

The Plaintiff is the person who starts the proceedings. His/her name will be

mentioned first on the Combined Summons, further pleadings (formal court

documents) and notices.

In divorce proceedings, the Defendant is the Plaintiff’s spouse.

Depending on the circumstances, we would recomend  a roundtable meeting or a divorce

mediation, to issue summons on a contested basis or to continue to the next step of the contested divorce process.

Depending on the circumstances and issues in dispute, the following experts

might be appointed:

• Clinical Psychologist or Childcare Expert
• Forensic Accountant
• Industrial Psychologist
• Psychiatrist

It is possible for a father and a mother to lose his parental rights or have them limited or suspended, and it is just as possible for a father to apply to have the rights of a parental rights co-holder limited, suspended or terminated. Any holder of parental rights, a person with sufficient interest – or even a child – could apply to have the parental rights and responsibilities of a rights holder limited, suspended or terminated. In determining any such application, a court will give consideration to all relevant factors, including the nature of the relationship between the child and the parental rights holder.

Fathers who are not married have been given the option to register their biological children using their last name.

Dads (as with all parents) need to acquire parental rights and responsibilities in order to exercise and fulfil them.

Unmarried dads also get full parental rights and responsibilities, in terms of Section 21, if they were either living in a permanent life partnership with the child's mother at the time of the child's birth or if they consent and successfully apply for such rights as well as make a contribution to the child's upbringing and maintenance for a reasonable period.

The Children's Act does not have any procedures for getting permission to move. Section 18 of the Act, on the other hand, makes it clear that both parents must agree for one parent to move outside of South Africa. Section 18(3)(c)(iii) of the Children's Act says that a child's parent must give or refuse any consent required by law for the child, including permission for the child to leave or be taken out of the Republic. When a marriage ends, the basic rule is that both parents keep guardianship of their children unless the court says otherwise. Section 18 of the Children's Act tells parents what they have to do and what rights they have when it comes to their kids. These include the responsibility and right to take care of the child, to keep in touch with the child, to act as the child's guardian, and to help pay for the child's care.

In South Africa, an international divorce is one in which only one of the people getting a divorce lives in South Africa. 

You don't have to live in South Africa to be a South African citizen. 

You can live outside of South Africa and still have your home there. 

According to the South African Divorce Act, a South African court will have jurisdiction if the parties or one of the parties is domiciled in the area of the court's jurisdiction on the date the action is brought, or if the parties or one of the parties is ordinarily resident in the area of the court's jurisdiction on the date the action is brought, or if the parties or one of the parties has been ordinarily resident in the Republic for at least one year before the date the action is brought.

The so-called dum casta clause is a passage in a divorce settlement agreement which specify that the spousal maintenance responsibility will end once the other party remarries or lives with each other as husband and wife with another person

One should never rush into dividing up pension and/or retirement funds in a divorce settlement.

It is crucial that the settlement agreements be drawn up by an attorney who specializes in divorce law. 

The division of pension funds all depends on your marital contract. What does your contract say?

Marriages in community of property

The pension interests of the spouses will form part of the parties’ joint estate, and the non-member spouse will be entitled to claim 50% of the pension interest of the member as of the date of the divorce.

Marriages out of community of property with accrual

Where couples are married out of community of property with the accrual, the spouse’s pension fund value will be taken into consideration in order to determine the value of his or her estate for purposes of the accrual calculation only. 

Marriages out of community property without accrual before 1 Nov 1984

The spouses retain their own separate estates, and there is no sharing of assets at divorce unless a court orders a redistribution of assets in terms of Section 7(3) of the Divorce Act. A pension interest forms part of the spouse’s estate and will then form part of the assets if redistribution is ordered by the court. The parties may also agree to share the pension interest in a settlement agreement.

Marriages out of community of property without accrual after 1 Nov 1984

Here, the spouses retain their own separate estates, and there is no sharing of assets at divorce. Any share in the pension interest will have to take place by mutual consent. The parties may also agree to share the pension interest in a settlement agreement.

In terms of Section 7(2) of the Divorce Act 70 of 1979, a court will take the following factors into account to determine whether a spouse will be entitled to spousal maintenance or alimony:

1. The parties' existing and prospective means;  

2. The parties' respective earning capacities and financial needs and obligations;

3. The age of the Plaintiff;

4. The duration of the marriage;

5. Defendant’s conduct in so far as it caused the breakdown of the marital relationship;

6. The parties' standard of living; and

7. Any other factor

The duty to pay spousal maintenance post-divorce is found in Section 7 of the Divorce Act, 70 of 1979 ("the Act"). This duty arises in two ways:

By way of a Settlement Agreement

Section 7(1) of the Act provides that the court, when granting a decree of divorce, may, in accordance with the written agreement between the parties, make an order with regard to the payment of maintenance by one spouse to the other. This is usually the case when a settlement agreement is entered into between the parties prior to the finalization of the divorce.​

By way of an Order of Court

In terms of Section 7(2) of the Act, and in the absence of a written agreement (a settlement agreement), the court may make an order that it finds just in respect of the payment of maintenance by one spouse to the other by taking various factors into account. The court is required to consider the factors referred to in Section 7(2) in order to decide, firstly, whether maintenance is to be paid at all and, if so, the amount to be paid and the period for which maintenance is to be paid.

​

It is significant to note that the word “may” is used in the Act. It is therefore clear that awarding post-divorce spousal maintenance is purely discretionary, that there is therefore no automatic right to maintenance on divorce, and that a party who claims maintenance must prove that he or she is entitled to maintenance. In terms of Section 8 of the Act, a maintenance order may at any time be varied, rescinded, or suspended.

You must first ascertain the child's reasonable monthly needs in order to make a maintenance claim. 

There is no hard and fast rule, but generally, the child’s share of the common expenses in the household is determined by allocating one part per child and two parts per adult or older child.

Depending on the child's needs and the parents' financial situation, maintenance may need to be changed frequently.

Maintenance cannot be evaluated solely in terms of money. Most of the time, the parent who cares for the child every day helps pay for his or her upkeep by spending time with the child. Even so, both parents still have to pay child support based on what they can afford, how much they earn, and how much they spend.

Please find a downloadable maintenance document below to help you with your calculations.

Maintenance Calculator Download

Subject to the defense that failure to make a payment in terms of a maintenance order is due to lack of means, a person who fails to make a particular payment in accordance with a maintenance order is guilty of a criminal offense and liable on conviction to a fine or to imprisonment. 

A parent is therefore fully entitled to lay a criminal charge against a person who is obliged to pay maintenance in terms of a court order if he or she fails to stick to the terms of the order. Even though this step will probably lead to an arrest, it does not mean that the person will get paid.

A very difficult area is the enforcement of maintenance payments. People who are supposed to pay maintenance often refuse to do so or just don't do it. There are no clear guidelines on the enforcement of maintenance for children. 

A court may impose some of the following sanctions upon a maintenance defaulter:

Fine

Usually, the defaulter cannot pay the fine, but even if he or she can, the money should not go to the state.

Imprisonment

The punishment for non-payment of maintenance results from disobeying a court order, which is an offense. Defaulters can be imprisoned for a period not exceeding one year.

Suspended sentence

Suspended sentences are often imposed against maintenance defaulters. It is desirable that a sentence be suspended because someone who is sentenced to prison may lose his or her job and consequently be unable to maintain his or her dependents. One of the principal objects of the maintenance act is to ensure that minor children are properly supported by their parents, so it is often inappropriate to send transgressors to prison.

A court may make an order along the following lines: 60 days imprisonment, 50 of which are suspended on condition that the accused:

is not convicted of a similar offence during the period of suspension;

pays the arrear maintenance at the rate of X amount per month; and

pays the state for the sheriff's fees.

Correctional supervision

Correctional supervision is community-based punishment and highly suitable for maintenance defaulters. It could include house arrest, money, work if possible and needed, and being watched over by a probation officer.

No matter the child's age, the parent is still obligated to pay support until the child is grown up, adopted, or passes away. Once the child reaches the age of 18, the onus is on the child to prove how much maintenance he or she needs. A child that is self-supporting cannot claim maintenance from his or her parents. The duty to support a child ends at the child’s death but not at the parent’s death. If the parent dies, the child can file a claim for support against the estate of the parent who died.

In many cases, a divorce settlement or a child support order will say that child support must be paid until the child reaches a certain age. Once the child reaches that age, the order will stop working on its own. However, if the child is not yet able to support himself or herself, the parent must continue to take care of the child. The maintenance claim must now be made by the child in person (who is now an adult) and not by the custodial parent.

According to our legal system, the responsibility for child support and maintenance shifts to the child's maternal and paternal grandparents if either parent is unable to do so.

When a parent passes away, this primary responsibility to maintain the child will not end or be extinguished, but will rather lie against the estate of the deceased parent. 

Where a deceased parent’s estate is inadequate to cover the child’s support, or if there is no estate left over to meet the child's maintenance requirements, the duty to support will be extended to the child’s maternal and paternal grandparents jointly.

Depending on the circumstances and issues in dispute, the following experts

might be appointed:

• Clinical Psychologist or Childcare Expert
• Forensic Accountant
• Industrial Psychologist
• Psychiatrist

It is possible for a father and a mother to lose his parental rights or have them limited or suspended, and it is just as possible for a father to apply to have the rights of a parental rights co-holder limited, suspended or terminated. Any holder of parental rights, a person with sufficient interest – or even a child – could apply to have the parental rights and responsibilities of a rights holder limited, suspended or terminated. In determining any such application, a court will give consideration to all relevant factors, including the nature of the relationship between the child and the parental rights holder.

Fathers who are not married have been given the option to register their biological children using their last name.

Dads (as with all parents) need to acquire parental rights and responsibilities in order to exercise and fulfil them.

Unmarried dads also get full parental rights and responsibilities, in terms of Section 21, if they were either living in a permanent life partnership with the child's mother at the time of the child's birth or if they consent and successfully apply for such rights as well as make a contribution to the child's upbringing and maintenance for a reasonable period.

The Children's Act does not have any procedures for getting permission to move. Section 18 of the Act, on the other hand, makes it clear that both parents must agree for one parent to move outside of South Africa. Section 18(3)(c)(iii) of the Children's Act says that a child's parent must give or refuse any consent required by law for the child, including permission for the child to leave or be taken out of the Republic. When a marriage ends, the basic rule is that both parents keep guardianship of their children unless the court says otherwise. Section 18 of the Children's Act tells parents what they have to do and what rights they have when it comes to their kids. These include the responsibility and right to take care of the child, to keep in touch with the child, to act as the child's guardian, and to help pay for the child's care.

In an uncontested divorce, the Family Advocate does not have to agree to the parenting plan before a Judge or Magistrate will grant the divorce.

When parents can't agree on how to care for and see their children, the Family Advocate helps them come to an agreement that works for everyone.

The Family Advocate will look into the situation by talking to the parents and, sometimes, the kids involved. 

This will give the children a chance to be heard in a place that is good for kids instead of having to go to court.

The family advocate will use the facts and information gathered to make suggestions that are best for the kids.

A recommendation is not binding until it is written into a Court Order. 

The suggestions are only meant to help the Magistrate or Judge who is in charge of the case.

You can always hire your own child care expert if you don't agree with what the Family Advocate tells you to do.

Family Advocates are employed to work for the Department of Justice and Constitutional Development

of South Africa. Their services are totally free of charge to the public.

Yes, it is compulsory to pay maintenance.

Yes, you can go to any local magistrate court where you and/or the child resides.

The maintenance money should be paid every month on the dates agreed upon by both the parties and granted by the court.

The maintenance money should be paid out from the deceased estate for future maintenance.

Yes, you can request decrease/increase of the amounts, especially if the financial circumstances have changed.

The Identity document, birth certificate of the child, bank statements of both the parents, list of the expenses of the child,list of expenses of both the parents, etc.

Yes, you can claim maintenance if the other parent does not take responsibility of maintaining the child.

If the respondent fails to pay within the specified times, you should report the matter to the maintenance offices. The court will follow one of the following two options:

The magistrate may order one of the following: emolument attachment, attachment of debt, and/or execution of movable or immovable property.

Criminal Prosecution. A warrant of arrest can be issued if the respondent fails to comply with an order of court.

Rehabilitative maintenance is for a specific, fixed period only. The fixed period cannot be reduced or prolonged.

Permanent / lifelong maintenance is payable from date of divorce and commonly on a monthly basis up until such

time when the recipient of the spousal maintenance passes away

The court may order the respondent to make payments by means of:

• An electronic funds transfer (EFT) to the beneficiaries bank account.
• A deduct of the maintenance money from the respondents’ salary, (Garnishee order)
• Direct deposit to the beneficiaries bank account

The payment of maintenance will continue until the child is self-supporting. However, the maintenance payment should be deposited directly to the child’s banking account.