DIVORCE LAW

Divorce Law | Benita Ardenbaum Attorneys

In South Africa both the High Court and the Regional Magistrate’s Court deal with divorce litigation. Both courts have similar procedures which need to be followed prior to a matter going to trial. Divorce proceedings are commenced when one of the parties serves a summons on the other party, setting out their claim, which can include, over and above a decree of divorce, things such as spousal maintenance, child maintenance, care of and contact with minor children, division of assets, etc.

Whilst we do our utmost, throughout proceedings, to make attempts to settle divorces through negotiation and mediation, where this is not possible, we will deal with the court processes and procedures on your behalf.

For direct answers to your specific personal questions, please contact us directly.

Read more about our Divorce Lawyer services.

DIVORCE PAPERS

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Divorce papers are the documents which are issued and served on your spouse in order to initiate the divorce proceedings. These papers are also referred to as the summons and particulars of claim.

Whether you are considering engaging in divorce mediation in the hope of reaching a settlement so that your divorce is uncontested, or whether you anticipate a contested divorce, the summons and particulars of claim will always need to be issued by the court and served on your spouse by the sheriff of the court so that the process of the divorce can begin.

The summons and particulars of claim details the following:

1. The details of both you and your spouse, including when, where and how you were married.

2. The reasons for the breakdown of the marriage.

3. Maintenance may be required (both spousal maintenance and child maintenance).

4. The residence and contact to be exercised in respect of any minor child(ren).

5. The proprietary consequences of the divorce.

Once the summons and particulars of claim have been served on your spouse; they will have an opportunity to oppose the divorce should they not agree to the terms stipulated in the particulars of claim.

In the event of your spouse wanting to oppose the divorce action, for whatever reason, the process of filing further pleadings with their replies and own claims then begins, and with you also replying to their claims, with the end point being the trial.

GETTING DIVORCED

When parties intend on getting divorced from one another, it is not only the issue of maintenance and contact with children that need to be dealt with. Parties also need to deal with the financial implications of dissolving the marriage.

Dealing with the proprietary consequences of a divorce refers to dealing with, amongst other things, immovable property, general assets including household items, motor vehicles, pensions and retirement annuities, business interests and debts.

The matrimonial property regime which is applicable to your marriage will determine how the proprietary issues of the divorce must be dealt with in the event of there being no agreement between you and your spouse on this.

Parties to a divorce action have contractual freedom to either apply the matrimonial property regime, alternatively to apply the terms of a settlement agreement that they might find better suited to their circumstances or more pragmatic, in order to finalise the financial issues involved. Any agreement which may be entered into will then, insofar as may be permitted by the Court dealing with the divorce, be incorporated into the final Divorce Order.

Where parties cannot agree on how these issues are to be dealt with, the Court will adjudicate on these matters at trial.

For direct answers to your specific personal questions, please contact us directly.

Read more about our Divorce Lawyer services.

DIVORCE MEDIATION

Divorce Mediation | Benita Ardenbaum

Academics, lawyers, courts and legislatures have shown support for alternatives to litigation based resolution of family disputes. Alternative dispute resolution methods aim to create a suitable atmosphere for parties to attempt to resolve their disputes by adopting processes that would allow them to engage meaningfully with each other. Recently, there have been unprecedented efforts to develop strategies aimed at more efficient, less costly and more satisfying resolution of family conflicts, including more extensive and appropriate use of various alternative dispute resolution approaches.

Mediation

Mediation disrupts the traditional way Divorce Law is practised. Our courts are increasingly stressing the importance of mediation, especially in divorce matters. Where parties have refused to mediate, our courts have displayed their distaste for such conduct by awarding cost orders against the offending party, including the parties’ attorney, where the attorneys did not refer the parties to mediation. Furthermore, the Children’s Act, besides providing for an approach which is conducive to conciliation and problem-solving, and which avoids confrontation and delays, specifically refers to mediation as a port-of-call prior to litigation being instituted. Upon or after divorce, section 33(2) read with section 33(5) makes it clear that parties may not approach the court for the resolution of their parenting disputes as a first resort. The objective of this is that they seek the intervention of a mediator or neutral third party to assist them in resolving the issues between them. Mediation must therefore first be attended.

Additionally, in terms of section 4 of the Mediation in Certain Divorce Matters Act, parties may, before being granted a divorce order, be ordered to submit to limited court-connected mediation by the office of the family advocate.

Why mediate?

Owing to the emotional and psychological trauma suffered during separation, most family members are ill-equipped to deal with negotiating issues relating to their separation, including the care of and contact with children, which can lead to ever-increasing levels of acrimony between parties and, consequently, further suffering, especially by any children. The current adversarial legal process more often than not exacerbates the problems inherent in separation and divorce. Through mediation, meaningful negotiation between the parties is achieved by soothing the emotions of the parties and assisting them to put matters into perspective. A mediator, who is an impartial third party with no decision-making powers, can assist the parties to isolate the disputes in issue methodically, to engender different options for resolving such disputes and seek possible alternative options, and, finally, to reach an agreement suitable to the needs of all parties concerned. Mediation, furthermore, is adaptable to different cultural value systems and/or religious beliefs and can accordingly afford people from all cultural backgrounds, including children, the opportunity of playing a meaningful role in the divorce process.

How can we help?

We pride ourselves on having experienced mediators in the firm and on making use of alternate dispute resolution wherever possible in order to mitigate the acrimony and costs associated with litigation. Mediation saves time and money and is a confidential process. The parties will also have control over their outcome instead of decisions being made by a court. Mediation is not for everyone particularly in situations where there is a power imbalance between the parties or where abuse has taken place.

For direct answers to your specific personal questions, please contact us directly.

INTERNATIONAL DIVORCE

International Divorce | Benita Ardenbaum

Regardless of where you and your spouse were married, a South African court will have jurisdiction to hear your divorce if either you or your spouse resides in South Africa. This applies whether you and/or your spouse are South African citizens or not. In terms of the South African Divorce Act, a South African court will have jurisdiction where the parties or either of the parties is domiciled or ordinarily resident in the area of the court’s jurisdiction on the date on which the action is instituted or has been ordinarily resident in the Republic for a period of not less than one year immediately prior to that date.

The question as to which law applies to the patrimonial consequences of your divorce, however, is determined by the law of the country where you and your spouse were domiciled at the time of the marriage. In circumstances where the spouses were domiciled in different countries at the time of divorce, this issue can become somewhat complex.

Legal procedure

The procedure for an international divorce is much the same as for that of a local divorce, except that the times allowed for service and the manner of service of the summons on the defendant differ somewhat. However, once these formalities have been dealt with, the divorce will proceed in the same manner as a local divorce depending on whether or not it is contested.

Where the Defendant (the person against whom the divorce is instituted) lives in another country, the Plaintiff must first approach the court by way of what is known as an Edictal Citation application. The reason for this is that in divorce proceedings the summons must be served on the Defendant personally and the Court needs to be satisfied that service will be done properly by an official of the court in the foreign country where service is to be effected. Edictal citation is, therefore, a procedure according to which a legal document such as a divorce summons is served by a sheriff or his equivalent in the foreign country.

Service may also be effected on a South African address in circumstances where the defendant has elected a service address in terms of a Power of Attorney.

After service has been effected the defendant has a month to defend the action. In circumstances where no defence is filed, or where the parties are able to settle the disputes between them, the matter can proceed as an unopposed divorce.

Where the action is defended, the matter will proceed in the same manner as any disputed divorce. The defendant will be required to provide a service address in South Africa and within the jurisdiction of the court out of which the action was instituted, in accordance with the rules.

How can we help?

If either you or your spouse resides in South Africa, our trained and experienced professionals can assist you to obtain a divorce through the South African courts, should you wish to do so. Whether contested or uncontested, we have the necessary expertise required to ensure the best possible solution is obtained.

For direct answers to your specific personal questions, please contact us directly.

RULE 43 APPLICATIONS

Rule 43 of the Uniform Rules of the High Court and Rule 58 of the Magistrate’s Court Rules provide for interim relief pending divorce proceedings being finalised. If you or your spouse has instituted divorce proceedings, whether you have children or not, either you or your spouse can apply to the court for an interim order for maintenance for yourself and the children and for care and contact arrangements in respect of any minor children.

Legal procedures

Rule 43/58 proceedings are regarded as urgent and, accordingly, very specific rules apply to such matters. The applicant launches the proceedings by serving a short affidavit (sworn statement) on the respondent setting out the relief sought and the grounds upon which such relief is sought. The respondent then has ten court days in which to serve his/her sworn reply, setting out the reasons for opposition to the relief sought by the applicant. In such proceedings, the sworn statements of both parties should not be more than 20 pages each, plus annexures which will assist the court to come to a decision.

Once the period of ten days has expired, the applicant can approach the clerk/registrar of the court for a date on the unopposed roll. Such proceedings are generally heard within three weeks. Once an order is granted, such order remains in place until the divorce is finalised or it set aside or amended by the court upon application by one of the parties.

How can we help

Our trained professionals have extensive experience in such matters. Whether you are the applicant or the respondent it is vital that your case is adequately put before the court in a coherent manner and that all relevant evidence and information is attached to your sworn statement. If you are the applicant you will be required to satisfy the court that your claim is valid, there is a need on your part and that the respondent can afford to make the payment(s) required by you. If, on the other hand, you are the respondent, you will need to show why the order should not be granted in favour of the applicant.

We can assist you to draft your sworn statement and collate the necessary documents and brief Counsel to argue the matter in court.

CONTESTED OR OPPOSED DIVORCE

It is accepted that separation is a time of significant emotional upheaval for every member of a family. During separation and the divorce process feelings of loss and guilt combine with those of anger and revenge. You may experience extreme emotional and physical distress during the divorce process, which can manifest itself as insomnia, depression, weight loss and panic attacks. Much of this stress can be attributed to factors such as the need to reorganise daily tasks and parental responsibilities, the loss of significant relationships and possessions, and the need to establish a new identity as an individual. Likewise, divorce has a huge impact on the children of separating or divorcing parties, as they might have to change living conditions or schools and endure the acrimony of the separation or divorce, often being torn apart, both emotionally and psychologically, in an acrimonious war between their parents.

Legal procedure

Both the High Court and the Regional Magistrate’s Court deal with divorce litigation and both have similar procedures which need to be followed prior to a matter going to trial. Divorce proceedings are commenced when one of the parties serves a summons and particulars of claim on the other party, setting out their claim, which can include, over and above a decree of divorce, things such as spousal maintenance, parental responsibilities and rights which include; child maintenance, care of and contact with minor children, the primary residence of children and division of assets. The party commencing proceedings is referred to as the plaintiff and the other party, the defendant.

After service of the summons on the defendant, the following procedures are followed:

a) The defendant must file a notice of intention to defend within 10 days;
b) The defendant must file his/her plea and counterclaim if any, 20 days thereafter;
c) The plaintiff must file his/her plea to the counterclaim within 15 days.

At this stage, the pleadings are considered closed and the parties can begin the process of preparing for trial. This process can become extremely frustrating in circumstances where one of the parties refuses to cooperate, in which case there are remedies available to the other party, in the form of applications to the court. Both parties are required by the rules to make discovery (i.e. make available to the other side) all documents and tape recordings which are/were in his/her possession or control and which relate to any issue in question. Such documents would include schedules of assets and liabilities, bank statements, proof of the values of pension funds, investments and shares, etc. Depending on the complexity of your matter, the attitude adopted by your spouse, whether or not there are children involved, the issues in dispute and the like, this process can take anywhere from a few months, to several years.

How can we help?

Whilst we do our utmost, throughout proceedings, to make attempts to settle divorces through negotiation and mediation, where this is not possible, we will deal with the court processes and procedures on your behalf. We take care of the day to day management of your case and ensure that things are done according to the proper rules and that all your rights are protected, thereby taking the burden of litigation off your shoulders in order that you can focus on your emotional and psychological well-being. We adopt an integrative approach, which means we are not only concerned with the legal procedures, we will also provide you with the tools, support and referrals to other professionals who can assist you to transition from being married to leading a successful single life, and where you have children, to assist them to acclimatise to their new “family life”.

For direct answers to your specific personal questions, please contact us directly.

UNCONTESTED OR UNOPPOSED DIVORCE

Uncontested or Unopposed Divorce | Benita Ardenbaum

Where you and your spouse are able to agree upon the manner in which your marriage is to be dissolved, including the proprietary, patrimonial, maintenance and other issues relating to your divorce, getting divorced can be a fairly painless, quick and cost-effective procedure for both of you, and you can jointly appoint an attorney to assist you with the formalities.

How can we help?

Once you have reached a verbal agreement with your spouse, this will need to be reduced to writing and signed by both of you. Where there are minor children involved, you are also required to enter into a parenting plan dealing with a primary residence, care and contact, and maintenance of the minor children. We will draft the settlement agreement and parenting plan to ensure the correct format and terminology is employed in accordance with the relevant legislation and ensure that the parenting agreement is endorsed by the office of the family advocate, as is required.

Once these formalities have been complied with, we will draft a summons naming either you or your spouse as the plaintiff and the other party as the defendant and have this issued out of the relevant court and served on the defendant by the Sheriff. The court rules require the lapse of a period of ten days after service before we can apply to the registrar of the court for a date on the unopposed roll, which takes another approximately three weeks.

Only the Plaintiff needs to appear in court on the day to appear before the judge and the actual divorce process takes only a matter of minutes. We will of course accompany you throughout this process.

For direct answers to your specific personal questions, please contact us directly.

COLLABORATIVE LAW

Collaborative Law | Benita Ardenbaum

Collaborative law is defined as ‘a method of practising law in which attorneys assist their clients in resolving conflict and making agreements using cooperative strategies rather than litigation’. Collaborative law is founded on both parties and their respective legal representatives entering into a written agreement in which all the parties to the process commit themselves to respectful and good faith negotiations. The hallmarks of the collaborative process are said to be: full, voluntary and early disclosures of relevant information; acceptance of the parties of the highest level of fiduciary duties towards each other; voluntary acceptance that the aim of the process is to settle the issues and commit to participate fully in the process; transparency of the process; joint retention of neutral expectations; commitment to meeting the legitimate goals of both parties if at all possible; avoidance of litigation or the threat of litigation; disqualification of all legal representatives and experts from participation in any future legal proceedings between the parties outside the collaborative process; and four-way settlement meetings as the principal means by which negotiations and communications can take place.

At the start of the collaborative law process, the parties, together with their legal representatives, bind themselves to engage in interest-based rather than positional bargaining, in order to jointly deal with issues, which emanate from their disputes. The deliberate avoidance of positional bargaining allows parties to be more open minded when negotiating, and thus allows them to consider each other’s interests and those of their children (if any). Such an approach allows parties to adequately understand each other’s needs and not to be unreasonable when negotiating for individual interests. Depending on the financial wellbeing of the parties, over and above their respective legal representatives, they can also hire one or more experts depending on their needs. For instance, they can hire a child development specialist, accountant, or a real estate appraiser to advise them fully with regard to their children, finances or properties. In order to ensure a certain level of fairness, experts who are brought in to assist parties to reach an amicable resolution – and thus be in a position to settle – need to be impartial and neutral. However, should they fail to assist the parties as expected and the matter ends up in court, then they would be disqualified from testifying in court.

How can we help?

Finding ways to achieve a fair and equitable resolution without the need for litigation, is always our priority. Accordingly, should you and your spouse be open to making use of a collaborative law model, our experienced and trained staff will be able to represent you in such proceedings, on the understanding that, if the process fails and litigation ensues, we will not be in a position to proceed as your representative.

For direct answers to your specific personal questions, please contact us directly.

SPOUSAL MAINTENANCE

Spousal Maintenance | Benita Ardenbaum

Spousal maintenance is maintenance paid by a former spouse, to the other former spouse, in respect of that spouse only. It is separate and distinguishable from child maintenance, which may also be paid in addition to spousal maintenance where there are minor or dependent children.

Interim maintenance during divorce proceedings:

During divorce proceedings, either party can bring a Rule 43 application seeking inter alia spousal maintenance.

Spousal maintenance in the divorce order: 

In the divorce order, a court may order one party to pay maintenance to the other either for a specified period of time (rehabilitative maintenance) or for an indeterminate period of time (until such person’s death or remarriage).

Rehabilitative maintenance is maintenance which operates for a limited and specified period of time, and is intended to assist the person receiving same towards becoming financially independent of their former spouse. Once the period specified in the order comes to an end, no further maintenance can be claimed.

Factors a court will consider when awarding maintenance:

  1. The existing and prospective means of each party (available assets and any other options available to produce an income).
  2. The earning capacities of each party.
  3. The financial needs and obligations of each party (and which of these are luxurious instead of being reasonable and/or necessary).
  4. The parties’ ages (and how this affects their prospective earning capacity).
  5. The duration of the marriage (the longer the marriage the greater the obligation to pay maintenance and the greater the entitlement to a higher amount).
  6. The standard of living enjoyed by the parties prior to the divorce.
  7. The conduct of either party leading up to the divorce where this is relevant to the reasons for the breakdown of the marriage.
  8. Any transfer of assets to be made in terms of a redistribution order (applicable only to marriages out of community of property concluded prior to 1 November 1984).
  9. Any other factor which the court, in its opinion, believes should be considered.

Recommendations for orders for maintenance:

  1. Any maintenance in terms of the divorce order should provide for either a specified percentage increase, or increase according to the Consumer Price Index (CPI) annually on the date of the divorce
  2. If you wish to preserve your right to be able to claim maintenance against your former spouse at a later stage, but do not strictly require any such maintenance now, then it is important and usual to include in the divorce order an order for maintenance of R1.00 per month without an annual increase. This allows you to approach a maintenance court in future.
  3. Where spousal maintenance is the only remaining issue in dispute in divorce proceedings, or is particularly contentious and a hindrance to the settlement of the matter, it is usually more cost-effective, rather than running a full trial to decide on this issue alone, to agree in the settlement agreement to preserve your rights to claim spousal maintenance. After the divorce you can then approach the nearest maintenance court for a maintenance order.

What should I prepare or bring with me for my attorney?

  1. Original identity document and/or copies of your identity document.
  2. Schedule of your monthly income and expenditure. Kindly follow the link here to be taken to our online income and expenditure form.
  3. Documentary proof of all income received by you from any source, and of your expenditure. In particular, you should bring with you bank statements for all accounts which you hold or have control over for the last 6-12 months.
  4. Schedule of your assets and liabilities reflecting the current values of these.
  5. Documentary proof of the value of your assets and of the amounts outstanding for each of your liabilities.
  6. Any evidence you may have of your spouse’s or ex-spouse’s income and expenditure and his/her assets and liabilities.

For direct answers to your specific personal questions, please contact us directly.

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