Nearly half of all marriages in South Africa end in divorce. Divorce need not be bitter or erupt into a war. Unfortunately, though, in many divorces, spouses turn what could be an amicable end to their marriage into an emotionally difficult and expensive legal battle by allowing their anger, hurt and fear to take over their rational thinking. Getting divorced is never easy, but when people realise that it is not about winners and losers and massive legal bills, but about making a clean break and working out the terms of the divorce together or with the intervention of legal representatives, then the process can be relatively easy.
The early stages of divorce are usually characterised by strong emotions: pain, shock, betrayal, hurt and panic. Regardless of who initiated the divorce, whose actions led to the breakdown of the marriage, who was at fault and how long trouble had been brewing, the decision to proceed with a divorce is never an easy one. If your divorce is contested, our courts apply what is called the adversarial system, which is built on the ancient legal practice of having legal representatives on each side fighting as hard as they can to beat their opponents at trial. This system forces the parties into a mindset of winners and losers. After hearing the evidence and arguments by each side’s legal representative, a neutral judge must figure out who is telling the truth in order to reach a just decision and to pass judgment favouring one side over the other.
In a contested divorce, each side will spend months, if not years, preparing for trial. Attorneys and advocates will investigate and scrutinise the facts, consult with witnesses, exchange and discover documents, and subpoena records of financial institutions in preparation for a trial that, if it occurs, will take place a few years after the summons was served. It is regrettably a long, winding road. Coming to an amicable resolution is not only cheaper and faster, it is less destructive for both parties and for any children that may be involved.
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Author – Jessica Gooding
