Dealing with divorce – How to part ways properly according to the Law
26 Nov 2020
Divorce is a difficult reality. While the emotional pain is hard to bear, Legal&Tax Services can at least be your companion in offering expert legal advice on this process.
Types of divorces
The Divorce Act is the law that states what legal reasons a court will accept in order to grant a divorce. The law also explains what evidence a court will accept in order to prove that a marriage has broken down irretrievably (with no chance of repair).
The Act states that there are two types of divorces.
This is when one of the partners to the marriage does not agree to get divorced.
This is when both the partners have agreed to get divorced. If you are able to come to this agreement, this is good news financially and emotionally.
How will you split your assets & debts
It is important to know under which marital regime you are married.
A marital regime is the legal choice you and your partner made at the time that you got married about how you wanted to share or divide any assets (valuable possessions, property or businesses) as well as debts (money owed).
When you get divorced, your type of marital regime will determine how your assets and debts will then be divided.
Married in Community of Property
This means that both parties will share all assets and debts, except for when one of you receives an inheritance.
According to the law, you and your partner are considered as one joint unit called an estate.
When it comes to divorce, this will mean that you will have to divide all your assets and debts exactly in half.
Married out of Community of Property
This means that both partners signed a contract called an ante-nuptial contract. This is a written agreement that explains how you and your partner have decided you will divide any assets and debts.
When it comes to divorce, this will mean that you don’t have to share your assets and debts equally. Instead, you can simply leave the marriage with what you originally agreed you each separately own.
Married out of Community with Accrual
This means that although you and your partner have not shared the assets or debts with which you came into the marriage – if you get divorced you will have to share any assets or debts that you accumulated (built up) during the marriage.
What is the legal process of getting divorced?
The following documents need to be submitted to the courts. Legal&Tax Services can offer you expert legal advice and guide you in how to fill these out and the processes to follow:
- Summons. You get this at the civil court.
- Plaintiff’s particulars of claims. This is a document in which you explain what moveable goods or money you want, if you are to divorce.
- Arrangements regarding dependent and minor children. (This only applies when the children are under 18. This document must be signed by both parents in front of a Commissioner of Oaths).
- Attach copies of children’s recent school reports.
- Deed of settlement signed by both parties and two witnesses.
- Divorce statistics form. This is a form for court records.
Where there are minor children involved, a set of 3 copies of all these documents (excluding statistics form) must be submitted to a family advocate. A family advocate is free of charge to the public as it is a service run by the government’s justice department. The family advocate will stamp two copies and give you one copy to keep. After the divorce is finalised, a family advocate will provide you with an endorsed (official) copy of the documents.
Procedure to follow in an uncontested divorce
An original and a copy of the documents will be sent to the relevant sheriff who will then serve (hand over) the documents to your spouse. Once documents are served then your partner will have to collect return of service (proof that the documents were delivered), then file all these documents together with set of original summons and family advocate’s report (if applicable).
You will request a court date from the court Registrar. On the date of appearance, you must be in court at 09h00. You must have your original marriage certificate to hand over to the court during proceedings.
You can only represent yourself in the Regional Court and not in the High Court. If your divorce matter is being heard in the High Court, you will not be able to represent yourself. Instead you will need to have an Attorney or Advocate represent you. Your divorce would be heard in the High Court if your estate is worth a certain amount or if the case is particularly complicated.
Procedure to follow in a contested divorce
Once documents have been put together, a copy and original will be sent to the sheriff to serve the other party (be given to your spouse). After the documents are served to the other party, they will have 10 days to file a notice of intention to defend. This is a legal action that states they will be fighting against the divorce. Once notice of intention to defend is entered, the spouse contesting the divorce will have 20 days to enter a plea and counterclaim. This is where your spouse will explain if they agree to the divorce or not. Upon receipt of plea and counterclaim, you will have to enter your plea to counterclaim. After your plea and counterclaim is served on your spouse, a pre-trial will be set down.
A pre-trial hearing is an opportunity to see if certain issues in dispute (that you are arguing about with your spouse) can be resolved before the actual trial in front of the judge. The pre-trial hearing involves just you, your spouse and the attorney, and if you can reach an agreement it will save you a lot of time and energy spent in court.
If this matter is not settled during the pre-trial, then a trial date will be requested from the Court Registrar and the matter will be set down for a trial.
It is important that you and your spouse to make an agreement of how you will parent your children while you wait for your divorce to be finalised. This is usually an agreement that can be drawn up with a social worker, family advocate or mediator. Legal&Tax Services is able to provide you with a draft parenting agreement.
Maintenance (the payment of money for supporting children) will be dealt with separately as it is a separate application made to the court.
Appointment of a liquidator
Parties will obtain a legal document called a decree of divorce – whereby, if they are married in community of property, but can’t agree on who will take what from the joint estate, an application to appoint a liquidator will be brought before court. After the liquidator is appointed, this person will assist both parties to divide the joint estate.
Alternative divorce methods
The most well-known way through which to complete the legal process of divorce is to get an attorney to help you. However, there are other ‘do-it yourself’ ways in which you can carry out the process, and often these can be cheaper and easier. It is suggested to seek legal advice before you decide on a ‘do-it yourself’ divorce.
The ‘do-it yourself’ divorce process
The first step you will need to take is to go for mediation. Mediation is a formal discussion where both partners meet with a mediator who will help the couple agree on what arrangements to make in order to separate their lives.
You will need to have at least three sessions with your mediator.
The mediator will explain and discuss what rights and responsibilities you both have. You will make decisions about contact times with your children and maintenance payments.
If the emotional relationship between you and your spouse allows, this is an excellent way to carry out a divorce as you both have an equal say in how you want your lives as parents to carry on into the future.
A mediator will also help you with the writing up of a legal document called a parental plan. The plan will then be endorsed (legally approved) by the family advocate. You will also need to complete a form called a 2E. This is a maintenance form and your mediator can also help you to fill it out. The form will then be taken to maintenance court and then made an order of court. This means the court approves of the agreement you have reached.
All these documents can be taken to the registrar of the divorce court together with the settlement agreement. A court date will be arranged. You will appear in court that day and the court will legally declare that your marriage is dissolved (finished).
If you do not have the money for a private mediator or a lawyer, you can still get help. The Children’s Court has a list of mediators who will help you pro bono (for free). You can also go to the court registrar who will help you with the documents you need to fill out.
Note: Although there are many steps in a divorce that you can now do yourself – you must still make sure that all documents you use are legally correct.
If you find a template of a divorce settlement on the internet, it might have mistakes on it. This can land up costing you both time and money.
Rather use Legal&Tax Services as your expert companion to ensure that you close this chapter of your life in a calm, clear and legally correct way.
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- When is an antenuptial contract necessary?
- Spousal maintenance – Duty to support spouse post divorce
- The legal advantages of marriage