Most South Africans divorce within the first five to nine years of marriage and most of those are initiated by women.
The most common reason sited for divorce in South Africa is simply that the couples drift apart, followed closely by drug and alcohol abuse (cocaine use being prevalent), physical abuse and unemployment.
More recently, statistics show that financial difficulties are coming to the fore in most divorce cases filed for the latter half of 2007 early 2008 whilst infidelity and lack of communication are cited less.
As in most countries, married couples can dissolve their marriage through divorce leaving the parties to remarry legally again at a later date. The process is dependent on the status of the marriage. In South Africa that is usually a civil marriage – in community of property or out of community of property. Some South African marriages are also customary marriages.
A civil marriage can be dissolved according to the Divorce Act. Customary marriages are dissolved according to civil law but also according to custom and tradition.
Addressing the Issues
Before petitioning for divorce, look closely at your options:
* Can you reconcile?
* Do you need a lawyer?
* Can you agree an asset split?
* Maintenance and custody of the children?
* What about alimony?
* What are the costs?
Most good lawyers will advise the petitioner to seek counselling and explore reconciliation prior to filing for divorce as the procedures can be lengthy and expensive if both parties are not in agreement.
There are many avenues to follow in regard to reconciliation. FAMSA offer an excellent counselling and arbitration service to couples facing divorce.
Choosing a lawyer
A petitioner needs to ask first and foremost if a lawyer is necessary? If a couple is in agreement regarding proceeding with a divorce then the petitioner can file for divorce at the local court for a fee of R120, a copy of your marriage certificate, a copy of your ID and your completed divorce papers.
If a couple cannot agree on the issues of the divorce then it is advisable to seek legal guidance but bear in mind that each divorce case is different. Question your attorney on their specialisations, their approach to divorce – is it tactical or aggressive? Most importantly, ask them to outline their fee structure in full upfront.
Can you agree?
If the couple can agree on asset split, maintenance and custody of minors then filing at the local court is the easiest option. Usually a 50:50 split is awarded by the court anyway so fighting up front only costs you money. Sit down and be practical. You both have to start over and what you lose in legal fees could be put to better use.
If you can agree, draw up the agreement and both sign it and have it witnessed and attach it to your divorce petition. (Agreement)
Custody of the minor children
Custody must be agreed before a court will grant a divorce. Consider what is best for your children rationally. In most instances the woman is usually granted custody however it is not uncommon for a couple to agree that custody be granted to the father. In African Customary Law the father usually remains the childrens natural guardian.
Irrespective of custody, maintenance and visitation is required to be agreed upon and where a couple cannot or will not agree the court will decide bearing in mind that all parents have a duty to support their children including all illegitimate children.
Maintenance issues can be addressed to the Maintenance court once the divorce is finalised.
It is rare in South Africa that Alimony is awarded unless the spouse can prove that they are incapable of earning a living as they have been a house-spouse/parent since the inception of the marriage and have no visible means of support.
Alimony is usually agreed by the couple for a set period and taken into account with the settlement agreement.
Getting divorced can be very expensive. It is advisable to petition for divorce yourself via the local magistrates court to keep costs at a minimum. Agreeing the settlement, custody and maintenance upfront is the best solution in South Africa as it negates the need for an attorney and legal fees.
Figures released recently showed that the divorce rate last year was the lowest yet, and analysts say economic uncertainty has made unhappily married couples reluctant to part ways. Few couples divorce during tough economic times because lawyers fees are simply too expensive, often resulting in further financial problems for the couple as they enter their new lives.
Go to your local magistrates court and ask for their assistance. It is reasonable and just as efficient.