Family Law

Divorce rates have been increasing year on year in South Africa, meaning that even the happiest marriage can take a turn for the worse. Having a divorce lawyer worth their weight in gold is all the more important these days. Navigating the divorce process is a complex legal journey that requires proper support and guidance. Our family law department at Schoeman Borman Inc. assists clients with every step of the divorce process, from drafting initial court documents to finalising settlement agreements. Understanding the Divorce Process in South Africa All divorce proceedings in South Africa must be handled through a competent court. This includes civil and customary marriages, which are governed by the Recognition of Customary Marriages Act of 1998. Even if a marriage was entered in accordance with traditional customs, it cannot be legally terminated without a court order. This requirement ensures that family law matters, such as parental responsibilities and rights, division of estate and property, and child or spousal maintenance, are resolved fairly and in the best interest of all parties involved. Core Legal Actions by Divorce Lawyers 1. Divorce Summons and Counterclaims The legal journey starts when a divorce attorney issues a divorce summons on behalf of the client, being the plaintiff. This outlines the reasons for the divorce and the related claims. The responding spouse or rather the defendant, if the divorce is defended, may issue a counterclaim, raising matters like child care and contact, child maintenance, spousal maintenance, division of the estate and legal fees. Our attorneys ensure these documents are precise and fully compliant with family law requirements. 2. Marital Regimes The marriage regime plays a role in any divorce action, and it is therefore important to consider drafting an antenuptial contract to ensure that should a divorce arise, effect can be given to the antenuptial contract. Spouses married in community of property usually seek a 50 / 50 division in either the summons and/or the counterclaim. There are instances where a spouse can seek an order that the other spouse forfeits the benefits to be received.   In other instances, parties marry out of community of property with the accrual system. These marriages on dissolution of the marriage, require careful determination of each spouse’s estate to determine the difference in accrual and apply the formula. In other instances, notably where an antenuptial contract excludes accrual, a spouse may apply under section 7(3) of the Divorce Act for a redistribution of assets. The High Court may grant such an order where one spouse significantly contributed to the estate despite having married out of community of property, excluding the accrual. This is often seen in marriages where one party supported the household while the other built up wealth. A well-crafted legal argument is crucial to achieving a fair outcome. 3. Maintenance for Spouse and Children Divorce lawyers frequently handle claims for both spousal maintenance and child maintenance. The court considers income, living costs, and the specific needs of the children when determining these payments. Children have constitutional rights to be maintained by both parents, whereas a spouse does not have a constitutional right and the entitlement to spousal maintenance must be proved in Court. We help our clients prepare realistic, legally supported maintenance claims. 4. Parenting Plans and Parental Rights Parenting plans formalise issues of care and contact. These documents outline how the parents will manage shared responsibilities, such as daily care, school arrangements, and holiday schedules. Courts only finalise divorces once they are satisfied that the children’s needs are met. Our family law department helps draft practical agreements that protect parental rights and reflect each family’s unique circumstances. 5. Applications for Protection Orders In situations involving domestic violence, we support clients in applying for protection orders. These court orders offer immediate safety to at-risk family members and often become part of the broader divorce proceedings. Why Legal Assistance Matters Having the proper legal assistance during a divorce can affect everything from financial outcomes to the exercise of parenting rights. At Schoeman Borman Inc., our divorce lawyers offer comprehensive support during this challenging time, helping you understand your rights and fulfil your obligations. Our services include: Uncontested divorce  Child care, contact and maintenance claims Spousal maintenance disputes Estate division Guidance on customary marriages and partnerships (i.e. persons cohabiting but not married) Our legal team is committed to helping each client achieve the best possible outcome, informed by years of experience and a deep understanding of family law in South Africa. Speak to Trusted Divorce Lawyers in South Africa We assist clients across all family matters with strategic guidance, legal clarity, and real support. Let us help you move forward with confidence. Contact us to book a consultation with our family law department today for clear legal aid tailored to your situation.

Primary residency and care, or as it was formerly known, child custody, is a crucial issue in family law, particularly when parents separate or divorce. Parents must understand the intricacies of South African child primary residency and care laws to navigate these challenging situations. This article provides an overview of child custody laws in South Africa, emphasising key aspects and considerations to assist parents in making informed decisions. Family Law in South Africa Family law encompasses a broad spectrum of matters including marriage, divorce, child custody, and maintenance. Its primary aim is to protect the rights and well-being of all family members, with a particular focus on children. With regard to child primary residency and care, family law sets forth the legal framework for making custody decisions, ensuring that the best interests of the child are always given the utmost consideration. Types of Child Custody/Primary Residency and Care  Child custody in South Africa can be classified into different types, each with its own implications: Sole Primary Residency and Care: In sole custody arrangements, one parent is granted full custody of the child. This parent is responsible for the child’s daily care and decision-making. Sole custody is typically granted in cases where one parent is deemed unfit or unable to care for the child. Joint Primary Residency and Care: Joint custody involves both parents sharing the responsibility for the child’s upbringing. This arrangement allows the child to maintain a strong relationship with both parents, which is generally seen as beneficial for the child’s development. Physical vs. Legal Primary Residency and Care: Physical custody refers to where the child lives, while legal custody involves the right to make important decisions about the child’s life, such as education, healthcare, and religious upbringing. Parents can share either or both types of custody. Factors Considered in Child Custody Decisions South African courts consider several factors when determining child custody arrangements: Legal Process for Determining Primary Residency and Care  The legal process for determining child custody in South Africa involves several steps: Step 1: Mediation: Mediation is often the first step in resolving custody disputes. A neutral third party helps parents reach an agreement that is in the best interests of the child. Step 2: Court Proceedings: If mediation fails, the case proceeds to court. The court examines evidence, hears testimonies, and makes a custody determination based on the child’s best interests. Step 3: Legal Representation: Having a lawyer is crucial during custody proceedings. Legal representation ensures that parents’ rights are protected and that they receive proper guidance throughout the process. Modifying Primary Residency and Care  Orders Primary Residency and Care orders can be modified under certain circumstances: To modify a custody order, a parent must file a request with the court, providing evidence of the changed circumstances. The court will then reassess the custody arrangement based on the new information. Parental Rights and Responsibilities Both custodial and non-custodial parents have specific rights and responsibilities: Custodial Parent Rights and Responsibilities: The custodial parent has the right to make daily decisions about the child’s care and upbringing and is responsible for providing a safe and nurturing environment. Non-Custodial Parent Rights and Responsibilities: The non-custodial parent typically has visitation rights, allowing them to maintain a relationship with the child. They are also responsible for supporting the child’s needs, often through financial contributions. Co-Parenting Rights and Responsibilities: Successful co-parenting requires cooperation and communication between parents. Harmonious parent-child relationships are essential for the child’s well-being. Factors That Can Impact Child Custody Arrangements Domestic Violence Domestic violence has a significant impact on child primary residency and care  decisions under South African law: If domestic violence is involved, protection orders need to be issued to safeguard the child and the abused parent. These orders can affect custody arrangements by limiting the abuser’s contact with the child. The child’s safety is a top priority. Courts take allegations of domestic violence very seriously and will make custody decisions that ensure the child’s protection. Cross-Border For child custody disputes involving parents in different countries, careful consideration of international laws and treaties must be taken. As such, legal assistance is crucial in these complex cross-border family law cases. A Closer Look At The Children’s Act of South Africa The Children’s Act covers various aspects, including the court’s assignment of contact, care, and guardianship to interested persons. The best interests of the child standard serve as a guiding principle in all matters related to a child’s care, protection, and well-being.  Our lawyers have a deep understanding of the Children’s Act, and the provisions outlined in these sections are essential to ensuring that the rights and responsibilities of all parties involved are upheld in a fair and just manner. A summary of the Children’s Act 35 of 2005 -Chapter 3: Section 18 outlines the parental responsibilities and rights that an individual may have regarding a child, including caring for the child, maintaining contact, acting as the child’s guardian, and contributing to the child’s maintenance. Section 23 explains that any person with an interest in a child’s well-being can apply to the court for an order granting them the right to have contact with the child or to take care of the child. Section 24 states that any person with an interest in a child’s well-being can apply to the High Court for an order granting them guardianship of the child. The court must consider the best interests of the child and the applicant’s capacity to meet the child’s needs. Section 28 emphasises that the best interests of the child are of paramount importance in all matters concerning the child’s care, protection, and well-being. It outlines factors to be considered, such as the child’s relationship with parents and caregivers, the parents’ attitudes, and the ability of parents and caregivers to meet the child’s emotional and intellectual needs. >> See the Children’s Act 38 of 2005 SB Lawyers, Your Family Law Experts Navigating child custody issues requires a thorough understanding of South African family law. By considering the best

Maintenance duties include accommodation, food, clothes, medical expenses, and daily living expenses. Maintenance disputes are generally about affordability – the maintenance amount may be too little or too much. Disputes regarding maintenance demand immediate steps to be taken and require urgent intervention. The reality is that resolving a maintenance dispute can be time-consuming, and securing the services of an attorney who has knowledge of dealing with these disputes to navigate them in a successful manner is sometimes difficult.  At SB Attorneys, we understand that people turn to the Maintenance Court for a reason, and we strive to provide cost-effective, result-driven solutions.   Understanding Maintenance Law in South Africa The duty to maintain is based on a blood, adoption or marriage relationship. The requirements considered by a Maintenance Court in deciding whether to grant an order to maintain, generally, are the following: In terms of the maintenance law in South Africa, minor children have a constitutional right to be maintained by both their/his/her parents. This right is extended to children who are majors but remain dependent. Children who reach the age of majority before completing their education or who pursue tertiary education are considered dependent and have the right to be supported by their parents. Each parent’s share of the duty is apportioned according to his/her means. The duty to maintain is not limited to a child. Any family member, irrespective of the family member’s age, can approach the Maintenance Court for an order to be maintained, taking into account the requirements above.  When no maintenance order exists, the Maintenance Court may make an order against the person(s) to be legally liable, that the maintenance be paid to the person(s) claiming maintenance. Common Causes of Maintenance Disputes When there is a maintenance order, the Maintenance Court, depending on the relief sought and the circumstances, may make an order replacing the existing order (either an increase or decrease in the amount of maintenance), discharge the maintenance order (for instance, when a major child is no more dependent) or make no order (when the requirements referred to above, are not met). When an order exists, and the person against whom the order is made pays late or fails to pay, the maintenance order is enforceable regarding any outstanding amount, together with interest by execution against property, the attachment of emoluments or the attachment of debts.  A person against whom a maintenance order is made is guilty of an offence and liable on conviction of a fine or imprisonment. In circumstances where the defence raised against the non-payment relates to a lack of means, the matter will be converted into a formal enquiry to determine, factually, whether a lack of means exists on the side of the defaulting party and in which instance, the Maintenance Court will vary the existing maintenance order. It often occurs that where no maintenance order exists, the person from whom maintenance is claimed (the father) disputes the paternity of the child(ren). In these circumstances, the Court will order the parties to attend a paternity test to confirm the relationship (biological) between the father and the child. Once paternity is confirmed, the matter will proceed.  How To Institute Maintenance Proceedings The Maintenance Court is a Magistrate’s Court, and each Magistrate’s Court has a Maintenance Court. The Maintenance Court in the district where the person(s) reside in whose favour/benefit the order is made must be approached. A complaint relating to maintenance, whether it is that maintenance is not paid or a substitution or discharge of a maintenance order is sought, must be lodged with the maintenance officer, who will investigate the complaint. Only after the maintenance officer has investigated the complaint will the matter be referred to the maintenance court for an enquiry.  During the investigation phase conducted by the maintenance officer, attempts will be made to settle the dispute; however, in the absence of a settlement, the matter will ultimately be referred to the Maintenance Court for an enquiry. Here, the parties will present their case to the Magistrate and await the ruling. In High Court litigation, Rule 41A of the Uniform Rules of the High Court provides for mediation of disputes. Unfortunately, a similar provision does not exist in the Maintenance Act.  The Role of SB Attorneys in Maintenance Disputes SB Attorneys, who specialise in family law, prioritise the possibility of reaching a settlement as the first approach. This is especially important when minor children are involved, as it serves their best interests, both financially and emotionally. Pursuing a settlement can also save both parties time and costs associated with prolonged litigation. If you are facing maintenance disputes and require legal assistance, consider contacting our team at SB Attorneys. We understand the importance of all parties involved and strive to find a resolution that is both fair to the parents and that remains in the best interest of any children involved.

Going through a divorce is one of the most vulnerable situations for any person to be in, especially if one of the parties is resistant. The idea of losing a partner can bring about feelings of insecurity and uncertainty about various aspects, such as child custody, financial support, and the general aftermath of the divorce. The emotional impact of the situation can be overwhelming. Since divorce can be a life-changing and emotionally challenging experience, couples facing the possibility of divorce often seek ways to simplify the process. While DIY divorce papers may seem like an attractive option on the surface, this article will explore both its advantages and drawbacks, as well as the importance of involving sound legal counsel. We will shed light on the potential benefits of handling divorce paperwork independently, as well as the significant risks and pitfalls that can arise along the way. The Appeal of DIY Divorce Papers We understand that you may want to handle your own divorce proceedings without hiring a legal practitioner to avoid incurring legal costs. However, we would like to suggest that while cost is an important factor to consider, it shouldn’t be the only factor. When it comes to divorce, it’s vital to have an experienced and reliable attorney who can guide you through the process and ensure that your interests are protected. Choosing the right attorney can be a daunting task, but it’s worth taking the time to find the right one for you. After all, a DIY divorce may seem like a cost-effective solution, but it can end up costing you more in the long run if you don’t have the right support. The Pros of DIY Divorce Papers Divorce is a tough time, and it’s easy to feel like you can handle everything on your own. While it’s great to be resourceful, it’s important to remember that attorneys have years of experience and expertise that is invaluable in a divorce case. Trying to handle it on your own will end up costing you more in the long run. So, it’s always best to consider hiring an attorney at the start of the proceedings. They’re here to support you through this difficult time and make the process as smooth as possible. The Risks of Handling Your Own Divorce in South Africa The risks involved in attending to your own divorce are numerous. Claiming for Maintenance Correctly It is important to formulate a claim for maintenance when issuing a summons for divorce, especially if one spouse is dependent on the other spouse for financial support. This claim should include reasons for the breakdown of the marriage relationship, the financial means of both spouses and the contributions made by one spouse towards the estate or growth in the estate of the other spouse. Failing to do so effectively will result in the abandonment of the right to claim for maintenance. Clauses for Dependent Children When minor children are involved in a divorce settlement, it’s important to include specific clauses in the agreement or parenting plan to ensure compliance with the Children’s Act. Additionally, it’s crucial to provide for the maintenance of dependent children when issuing a summons. Type of Marriage Matters in a Divorce In Community of Property or Out of Community of Property with the Accrual: When spouses are married, either in community of property or out of community of property, and one spouse is unhappy about the other spouse’s failure to contribute towards the communal estate or if they feel that the other spouse will benefit unfairly, they can ask for half of the communal estate or an amount that represents half of the difference in accrual between the spouses’ respective estates. In such a case, forfeiture in terms of the Divorce Act must be pleaded. If forfeiture is not pleaded, it will be considered that the aggrieved spouse does not object to the division of the communal estate on a 50/50 basis or to the application of the accrual system. Out of Community of Property: It can become problematic in situations where parties are married out of community of property as well. For example, if one spouse contributed to the growth of the other spouse’s estate by participating in management, and labour, taking over household chores, including raising children, and enabling the other spouse to grow their estate, a (limited) partnership must be claimed. If such a claim is not made, it can be detrimental and difficult to amend the summons or pleadings later during the divorce when an attorney is appointed to make provision for it. Recently, the Constitutional Court passed a ruling on the discretion of a Court to make a redistribution order where parties are married out of community of property, excluding accrual, after 1 November 1984. Accurate pleas must be formulated in drafting a summons or a counterclaim for it. Rule 43 Applications A Rule 43 application can be used as a remedy for the availability of a spouse during a divorce action. This type of application is brought for relief while the divorce is being finalised. The application seeks: It is crucial to seek legal assistance in cases where the residency and care of minor children are in dispute, to ensure that the summons or counterclaim includes the necessary prerequisite pleas. Why Legal Counsel Matters Based on the information provided above, it is clear that choosing not to hire a legal practitioner or attorney may result in you having to pay more to correct and modify legal documents. Furthermore, it could lead to you unknowingly giving up your legal rights and losing your case. It’s important to seek legal counsel to ensure that you are fully aware of your rights and receive the best possible outcome.  Finding the Balance SB Lawyers provides in-depth legal counsel tailored to our ever-growing technological world so that you don’t have to do your own DIY divorce papers. We strive to empower our clients by keeping them informed and guiding them professionally towards optimal outcomes. How

Matters involving family law are usually somewhat legally complex and, more often than not, very emotionally charged. Clients requiring legal representation of this calibre require professional guidance to navigate family law matters effectively. In South Africa, family law attorneys specialise in various aspects of family-related legal matters, such as divorce, maintenance, child custody and adoption. SB Lawyers proudly offers legal services in family law to ensure our clients have affordable and ethical legal representation. We are here to give you the full rundown on family law and all it encompasses to help you understand the importance of family law attorneys and how they can assist you in resolving family law issues. What is Family Law? To be a family law practitioner is to be passionate about people and always act honestly. This is continuously upheld irrespective of the nature of the dispute, as family law is emotionally loaded with the advice given and decisions made that all have an impact on the lives of others. In the field of law, there are various avenues of law, and each is its own specialisation. With this in mind, qualified attorneys should avoid taking on matters with which they have limited experience. This is especially important in matters of family law that are incredibly intricate, detailed and emotionally loaded. Family law comprises a broad spectrum of specialities, and often the question arises, what cases fall within the concept of family law? Without being exhaustive, reference to the following is made: The So-Called “Divorce” Matter: In attending to a divorce matter, knowing how the parties are married is relevant as an initial step in getting started on the case. This can encompass various options such as in community of property, out of community of property (before 1 November 1984), out of community of property excluding the accrual (after 1 November 1984), or out of community of property with the accrual system. The marriage regime dictates whether parties share in one another’s estate and, if so, to which extent. If an antenuptial contract is not concluded, the parties are then married in a community of property. If an antenuptial contract was concluded, careful consideration must be given to the wording of the contract as it directly impacts the parties’ respective estates. It often happens that antenuptial contracts have patent errors, and, in such circumstances, it may result in a court declaring the marriage in a community of property. This can have a detrimental effect and create a significant impact on the dynamics of the case. Antenuptial contracts should, therefore, also be drafted with care by an attorney to ensure that the contract is enforceable and speaks towards the intention of the parties prior to getting married. During divorce actions, spousal maintenance also comes into play. The question is whether a spouse with a lower income is entitled to life-long maintenance or rehabilitative maintenance. The latter is intended to assist the party receiving the maintenance to be self-supporting at the end of the period of the rehabilitative maintenance. Whilst the court considers an issue of spousal maintenance, it takes various factors into account. This would include the duration of the marriage, the age of the parties, the standard of living, their respective financial obligations and needs and the reasons for the breakdown of the marriage. The So-Called “Primary Residence” Matter: Before the passing of the Children’s Act, the term “custody” was used and referred to the parent with whom the child resides. Today, reference is made to the primary residence of a child. When the primary residence of children or even the extent of contact rights are in dispute, the parents (parties to the divorce) may either agree to appoint a psychologist to assist with an assessment and recommendation. Alternatively, if seen fit, the psychologist can refer the matter to the office of the Family Advocate to investigate and report on the best interests of a child, which includes the primary residence, i.e. where/with whom the child will reside and the extent of contact rights to be exercised by the other parent. It often happens that an attorney is approached by a parent after the divorce has been granted, seeking an order that the primary residence of their child be amended to reside with such a parent. Whilst this depends on the individual case, an attorney should prepare an application to the court in such circumstances. If opposed by the other party, the attorney should then attempt to either appoint a psychologist by agreement or refer the dispute to the Family Advocate. The Family Advocate is a state department which assists the court in deciding on the best interests of children. Family Advocates are legally qualified and hold the right of appearance in the High Court. The Family Advocates are assisted by social workers who assist in the investigation and the compiling of reports. Primary residence disputes demand patience, knowledge and dedication from attorneys.  The So-Called “Maintenance” Dispute: The principle is that both parents must contribute to the practical needs of a child pro rata to their respective monthly income. Therefore, it is essential to calculate a child’s reasonable needs, which vary from household to household. Children are to be maintained until they become self-supportive, and the duty to support does not terminate when a child attains majority at the age of 18. Disputes On The Rights of Children: The Children’s Act promotes the rights of children, and the objective of the Act is to safeguard children against maltreatment and ensure that their best interests are served. The Act makes provision for the views and wishes of children to be considered in court matters, provided that the child is of such an age, maturity and stage of development. It often happens that children approach attorneys for legal assistance, and attorneys must satisfy themselves that the child’s views and wishes meet the criteria and remains uninfluenced. Apart from legal representation, children have the right to be in contact with a parent as well as direct and

There is an age-old debate about whether spouses should be bound to an anti-nuptial contract concluded between the two parties. This has transcended time, applying to both plaintiffs and defendants in divorce cases. Applying the principle of fairness and reason in divorce, actions favour the principle that an antenuptial contract should be disregarded in favour of a more reasonable, fair or equitable division of assets. Should the strict application of the antenuptial contract entered into between the parties not serve the principle of fairness in the division of assets, the opposite lobby argues that the principles of abiding with the terms of a contract should be applied. This is notwithstanding the fact that, in the event of a divorce, the effect of the antenuptial contract will cause an unfair distribution of assets between the parties. How It Progressed to the Constitutional Court The first attempt by the legislature to introduce the principle of fairness at the behest of serving the principle of contract occurred on 1 November 1984. This is noted as the period when courts were granted discretionary powers in terms of the Divorce Act. Simply put, in divorce proceedings, the court can make an order that serves the principle of “just and equitable” – contrary to the strict wording of the contract. The problem arose that the legislature introduced the principle of “just and equitable” only to marriages concluded before 1 November 1984 – but not marriages concluded by way of antenuptial contract after 1 November 1984. On 11 May 2022, the High Court of Pretoria, in the Greyling judgement, declared that the limited application of the principle of a just and equitable distribution of assets was unconstitutional. This was applied only to marriages entered into before 1 November 1984 as the Divorce Act did not apply to divorces of spouses married out of community of property after 1 November 1984. The Aftermath That Followed This piqued interest amongst attorneys, advocates and other legal practitioners practising in divorce law. This judgment by the High Court opened up a can of worms regarding issues disputing constitutional rights. This included contractual freedom, equality, dignity, property, freedom of belief and opinion and other potential rights. In future cases, the Constitutional Court would have to give general direction to attorneys and lawyers regarding the numerous disputes and actions in which attorneys represent spouses. This applies to husbands and wives as the plaintiffs and defendants in cases, respectively. There is uncertainty in present divorce proceedings as to what the ultimate decision of the Constitutional Court will be. This is due to the fact that the future judgment to be made by the Constitutional Court will have a severe impact on how future settlement agreements should be formulated in order to serve the best interests of divorcing spouses. A contested divorce is when one or both parties cannot agree on the terms of the divorce, such as the division of assets, child custody, or maintenance. In this case, the matter is referred to the court for resolution, and a judge will make a final decision on the terms of the divorce. A contested divorce can be a long, complex, and expensive process that may require the assistance of legal counsel. On the other hand, an uncontested divorce is when both parties agree on the terms of the divorce, and there are no disputes to be resolved by the court. This type of divorce is typically less time-consuming, less expensive, and less stressful for the parties involved. However, it is still important to follow the legal procedures for an uncontested divorce to ensure that the court recognizes the divorce and that the parties’ rights and interests are protected. Grounds for Divorce in South Africa It must be noted that the grounds for divorce in South Africa are not limited to the below-mentioned, and there can be other grounds too. However, whatever the grounds for divorce, it is crucial to follow the legal procedures and requirements to ensure that the court recognizes the divorce and that the parties’ rights and interests are protected. In South Africa, there are several grounds for divorce recognized by law, including: Irretrievable Breakdown Of The Marriage The most common ground for divorce is the irretrievable breakdown of the marriage, which means that the marriage has broken down to such an extent that it cannot be repaired. This ground can be proven in court by showing that the parties have been living separately for at least two years or that there is no reasonable prospect of the parties reconciling. Adultery Other grounds for divorce in South Africa include adultery, which is the act of one spouse having a sexual relationship outside the marriage without the other spouse’s consent. Adultery can be difficult to prove in court, and it is often used as a reason for divorce only when it has caused irreparable harm to the marriage. Abuse Abuse is also recognized as a ground for divorce in South Africa. This can include physical, emotional, or psychological abuse and can be grounds for divorce even if the abuse has not been reported to the police. Desertion Other grounds for divorce in South Africa include desertion, which is when one spouse abandons the other without consent or justifiable cause for a period of at least one year, and incurable mental illness, which is when one spouse is mentally ill and has been confined to a mental institution for a period of at least two years. Child Custody and Support In South Africa, child custody and support are determined based on the child’s best interests. When making these decisions, the court takes into account a range of factors, including: The child’s age, gender, and any special needs The relationship between the child and each parent Each parent’s ability to provide for the child’s physical, emotional, and psychological needs The child’s educational and social needs The child’s cultural and religious background The child’s wishes, if they are of an age and maturity to express a

The legal process of getting a divorce entails a married couple legally ending their marriage. Naturally, this brings with it a range of changes as many steps and proceedings need to be taken with legal professionals leading the way. Understanding the divorce laws and process in South Africa is essential because it affects not only the legal rights and obligations of the parties involved but also their emotional and financial well-being. Divorce proceedings in South Africa can be complex, and it is important to be informed about the legal requirements and procedures to ensure that one’s interests are protected. Additionally, understanding the divorce laws and process can help couples make informed decisions about their future and their children’s future, if they have any. If you or your spouse choose to get a divorce, it can be life-changing, but we can help ease the transition as best we can. In any matter involving children, a problem-solving approach should be taken to prevent any delay in any action or decision to be taken. Types of Divorce in South Africa In South Africa, there are two types of divorces: a contested and an uncontested divorce. Knowing the difference when you get a divorce significantly affects your understanding of what follows. A contested divorce is when one or both parties cannot agree on the terms of the divorce, such as the division of assets, child custody, or maintenance. In this case, the matter is referred to the court for resolution, and a judge will make a final decision on the terms of the divorce. A contested divorce can be a long, complex, and expensive process that may require the assistance of legal counsel. On the other hand, an uncontested divorce is when both parties agree on the terms of the divorce, and there are no disputes to be resolved by the court. This type of divorce is typically less time-consuming, less expensive, and less stressful for the parties involved. However, it is still important to follow the legal procedures for an uncontested divorce to ensure that the court recognizes the divorce and that the parties’ rights and interests are protected. The Divorce Process in South Africa The divorce process in South Africa can be complex and emotionally challenging. Here are the basic steps involved in the divorce process: Serving the Summons The first step in the divorce process is for one spouse to serve the other spouse with a summons. This document sets out the grounds for the divorce, the relief sought, and the court where the matter will be heard. Pleadings and Discovery Once the summons has been served, the respondent (the spouse who was served with the summons) has a certain period of time to respond to the allegations made in the summons. This is done by filing a notice of intention to defend and a plea. The parties then exchange relevant information and documents, known as discovery. Pre-trial Conference After the pleadings and discovery stage, the parties attend a pre-trial conference to try to settle the matter or identify the issues that need to be resolved in court. Trial If the parties are unable to settle the matter at the pre-trial conference, the matter proceeds to trial. Each party presents their case, and the court makes a final decision on the issues in dispute. Final Decree of Divorce If the court grants the divorce, a final decree of divorce is issued. This document sets out the terms of the divorce, including the division of assets, child custody, and maintenance. It is important to note that the divorce process can vary depending on whether the divorce is contested or uncontested. In an uncontested divorce, the parties can skip the pleadings and trial stages and proceed directly to the final decree of divorce if they agree on all the terms of the divorce. Additionally, the parties can use alternative dispute resolution methods such as mediation or arbitration to try to settle the matter outside of court. Division of Assets and Debts In South Africa, the division of assets and debts during the divorce depends on several factors, including the type of marriage, the contract the parties have entered into and the case’s individual circumstances. Generally, assets and debts acquired during the marriage are divided equally between the parties. In contrast, assets and debts acquired before the marriage remain with the respective party who owned them before the marriage. However, there are exceptions to this rule, and the court may order a different division of assets and debts based on the case’s specific facts. Having A Settlement Agreement It is crucial for parties to have a settlement agreement in place to ensure that their assets and debts are divided in a fair and reasonable manner in the divorce. This agreement can be negotiated between the parties with the assistance of legal counsel or using alternative dispute resolution methods such as mediation or arbitration. The settlement agreement should address all the relevant issues, including the division of assets and debts, child custody and support, and maintenance, among others. Having a settlement agreement can provide several benefits, including avoiding the need for a trial and allowing the parties to have more control over the outcome of the divorce. Additionally, a settlement agreement can be tailored to the specific needs and circumstances of the parties, which may not be possible if the court makes the final decision on the terms of the divorce. However, it is important for the settlement agreement to be drafted carefully and reviewed by legal counsel to ensure that it is legally binding and enforceable. Finding a Good Divorce Lawyer Finding a reputable and experienced divorce lawyer in South Africa can be challenging, but here are some tips and advice that may help: Seek referrals Ask friends, family, or colleagues who have gone through a divorce for recommendations of divorce lawyers they trust. Research online Look for divorce lawyers in your area and read their reviews and testimonials. You can also check

The best interests of children are the predominant factor in all matters concerning children, whether a maintenance-, residency and care or contact dispute. As recently as February 2020, the Head of Department of Social Development for KZN and Others, were ordered by Court to, amongst other orders, finalise all outstanding adoption applications within a month, thereby serving the bests interests of children as per the Constitution and the Children’s Act. Section 239 of the Children’s Act provides for applications for adoption orders and includes a letter of recommendation to be submitted by the Provincial Head of Social Development. In the aforementioned case, the issues in the matter related exclusively to the process, procedure and issuing of s239 letters and the delay occasioned in the finalization of adoption applications. In any matter involving children, a problem-solving approach should be taken to prevent any delay in any action or decision to be taken.

So, your marriage has reached the point of no return, and you think its time for a divorce. It can be a difficult decision to make, but sometimes a necessary one for the preservation of your own happiness and that of your children.So, what do you now do? Well let us help you with a brief explanation of how the process works, without being too technical. Step 1A summons needs to be issued with either the High Court or the Regional Court, generally (although there are exceptions and further technicalities) where the parties were domiciled for more than a year at the time of issuing summons. Step 2The summons is served by the Sheriff on your spouse.The processes may get more complicated depending on how the parties are married, if any children were born of the marriage, the age of the children and if the parties are engaged in an amicable or hostile divorce. If parties are hostile, towards each other, there are many other processes which may be needed, including an application for temporary maintenance to be paid until finalisation of the divorce action. Step 3 Would be your spouse’s response to the summons in the form of a plea. If the parties are engaged in an amicable divorce and simply want to part ways, the other spouse does not plea and the matter continuous unopposed. Step 4A date for the hearing if the divorce is applied for at Court. Step 5Papers are finalized and filed with Court as per the directives and the matter is heard on paper or by way of oral evidence – depending on the type of divorce and the Judge hearing the matter. We here at Schoeman Borman Inc are more than able and happy to assist you with any divorce matter.