South African law does not specifically provide for a Legal Separation for married couples. In the eyes of the Law, parties are either married or divorced. There is no in-between status.
While there is no specific concept of Legal Separation, it does not mean that a married couple cannot live apart. However, it does mean that until a Court pronounces them divorced, they are still deemed to be married.
For married couples who elect to live apart (whether for a short period of time or for an indefinite period of time) 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 could include among other things:
· Spousal Maintenance
· Child Maintenance
· Medical Aid
· School Fees
· Payment of the Home Expenses
In addition to the Separation Agreement, the Separating Couple may also need to enter into a Parenting Plan. The Parenting Plan would include issues such as:
· The children’s residence
· Each parent’s contact time with the children
On signing the Separation Agreement, the document would become valid and binding on the Separating Couple. The document would also as a consequence, be enforceable in terms of the Law of Contract. The effect of this being that a Spouse could approach the Court for assistance in respect of the other Spouse’s breach.
In a nutshell, while South African Law does not recognise the status of Legal Separation, it would recognise the Separation Agreement and give force to it.
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Author – Jessica Gooding