Divorce and the fork in the road to freedom

03 Aug 2023

Aiming for the unopposed divorce

You’ve tried your best. You’ve done what you can. Sometimes, it is just not going to work. It’s time to get a divorce and choose a new path and a new life.

It’s a subject that many people would rather avoid, especially if it’s from personal experience. Historical taboos still linger on when we think of families “falling apart” or even just the cold reality of splitting up our home and its contents. However, since it is becoming more common, we hope that we can offer some useful advice to anyone who is thinking about getting divorced on how to get through the process as painlessly as possible.

Communicating with your spouse

Of course, divorce is usually a last resort when communication has seemingly broken down, but it can save you both a fortune of time, money and heartbreak to just talk about what you want, rather than handing it over to the lawyers directly. If one disagrees with the prospect of divorce and wants to fight the other in court, it can get out of hand, leaving both parties hurt and miserable.

The best way to avoid these situations is to do your best to discuss your relationship and work out which avenues are open to you. We often assume that our spouse won’t listen or it’s not worth talking about, but it can be a revelation to hear what is actually going on in your partner’s mind after a long period of poor communication.

It does not have to be a nightmare

This may come as a shock, but it is possible to divorce your spouse without it becoming a nightmare.

Remember, in the eyes of the law, a divorce is purely a financial transaction. When you get divorced it’s the termination of a marital union. When the marital union is terminated, the legal duties and responsibilities of the marriage are dissolved, and the bonds of matrimony come to an end.

In South Africa, the consequences of a divorce are primarily legal and financial. Custody and maintenance of any children, should an agreement not be reached, will be subject to proceedings at your local Magistrate’s Court, over and above your divorce application.

As much as this may all be deeply personal to us, setting these feelings aside makes decision-making a lot easier.

Depending on which marriage regime you are married under, the law looks at your assets in a certain way.

  • Marriage in community of property
  • Marriage out of community of property with Accrual
  • Marriage out of Community of Property without Accrual

Even if your marriage was one in Community of Property and of Profit and Loss, which is often considered the regime that most thoroughly blends a couple’s assets together, it will still split them 50/50 at the end. It will be up to you and your spouse to decide what makes up which 50%.

Should the two of you be unable to come to an agreement on how to split your existing assets, liabilities and responsibilities, the court will have to decide for you, which may take a long time. And remember, these things are charged by the hour!

In order to give you some usable advice, which will save you a lot of time and misery, our legal experts suggest that you and your spouse work through this list.

The general issues to decide are:

  • What happens to the children
  • Who pays maintenance
  • Immovable assets
  • Movable assets
  • Pension funds and who gets what
  • Who pays what debt

If you can come to an agreement on the above, you are very likely to manage an unopposed divorce, which, when it comes to parting ways, can be the healthiest option. Both for your family and your bank account! Attorneys charge you for their time. If the divorce is settled easily, and the court does not have to spend a lot of time on it, the attorney will also spend less time on it resulting in fewer billable hours! Keeping emotions under control can be especially difficult when it comes to what feels like the breakdown of your family, but by focusing on the future, and filing an unopposed divorce, means that you can avoid the drawn out process of maintenance proceedings at your local Magistrate’s Court.

If it is already a nightmare…

If the idea of talking to your spouse sends shivers down your spine, you may have to admit that help is needed. If settling by private means is impossible, it is worthwhile to look at mediation between the parties. A qualified mediator will be able to facilitate negotiations, without discussions deteriorating, and ensure that each of you can get out what you need to move on with your life. It might be an extra short-term expense but can save you a lot in the long run.

In the end, it’s a new beginning

We understand that divorce is hard and can be very traumatic. It is important to remember that if it becomes toxic, it will spill over. How much damage could it do to the people around you? Your kids, your in-laws, even your own parents and siblings. It can seem impossible to ignore the hurt or betrayal. Maybe you even feel like you need revenge, to cause pain and make them feel as awful as you do. This is not unusual, but it does cause more problems than it solves. It won’t actually make you feel better, it will get expensive and, depending on your choice of retaliation, could get you arrested.

Don’t make the same mistake that so many people make. You could make a new life for yourself, that does not depend on destroying your old one.

Talk to your spouse. Follow our list. Aim for the unopposed divorce. It’s even covered on our Prestige and Prestige + Plans.

With Legal and Tax, you’re not alone

Article sourced from Legal&Tax.

See also:

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)
Michael Visser

Michael Visser is a legal advisor at Legal&Tax. He has a Bachelor of Commerce (B.Com.) Law and LLB from The University of Pretoria. Read more about Michael Visser


Family Law articles by

Family Law articles on GoLegal