Family Law Attorneys in South Africa: All You Need To Know

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 extended family members. Children also have the constitutional right to be maintained by their parents.

The Act has done away with the old-fashioned saying that children are seen and not heard, in fact, proving quite the contrary with good reason.

Understanding Family Law Attorneys

Family law attorneys are professionals of the legal sphere specialising in handling all legal matters relating to family relationships. Their skilled expertise covers a range of areas within law, such as marriage, divorce, child support and custody, domestic violence, adoption, and more. These legal professionals possess an in-depth knowledge of the South African legal system and are experts in the law and all regulations pertaining to family matters.

Roles and Responsibilities

Family law attorneys hold a vital role within the legal system, playing a crucial role in assisting individuals and families facing legal challenges within the jurisdiction of family law. Just some of the key responsibilities and roles they ordinarily undertake include:

  1. Mediation and Negotiation: As may be seen in many cases, family law attorneys have the aim of resolving disputes through the path of mediation and negotiation rather than resorting to immediate litigation. Facilitating communication, family law attorneys work towards finding mutually beneficial and acceptable solutions that prioritise the best interests of both parties involved in a given case.
  2. Legal Representation: When litigation is resorted to, respective clients of family law attorneys are represented in court proceedings by their attorneys. Preparing and presenting solid and concrete legal arguments, they advocate for their client’s rights to protect their best interests throughout the legal process.
  3. Legal Advice and Guidance: Family law attorneys are a source of expert legal advice and provide guidance to their clients based on their knowledge of South African family law. They help individuals understand their rights, legal options and obligations of the law, thus enabling them to make informed decisions to best navigate their case.
  4. Documentation and Paperwork: Matters of family law often involve thorough and extensive paperwork. This includes the reviewing and drafting of legal documentation such as contracts, agreements, and court filings. Family law attorneys assist in preparing these documents accurately to ensure compliance with all legal stipulations and requirements.

Choosing the Right Family Law Attorney

The choice of the right family law attorney for your personal case makes all the difference. It is crucial for achieving a favourable and desired outcome in your respective legal matter. Some factors to consider when selecting a family law attorney would include:

  1. Communication and Compatibility: In order to ensure compatibility between you and your attorney, effective communication and a good rapport should be present from the start. Values such as integrity and ethics are vital to ensure the best client-attorney relationship. Make sure your attorney is aware of and attentive to your concerns, responsive and invested in your questions, and able to explain and contextualise legal concepts in a way that you can understand.
  2. Affordability: Family law matters can rack up significant expenses as they usually involve substantial costs. With this in mind, it’s important to discuss all factors related to fees and payment upfront with your attorney so that both parties understand what is expected. Affordability should be a concern of the attorney as much as it is for their client, so transparent billing practices and reasonable fees are important considerations to observe.
  3. Expertise and Experience: In the case of matters specifically relating to issues of family law, you should look for an attorney specialising within the field of family law. This would ensure that they have substantial experience in handling cases similar to yours. Furthermore, immense familiarity with South African family law’s intricacies, proceedings, and dealings is essential in ensuring the best possible outcome for the matter of concern.
  4. Reputation and Track Record: Make sure to do ample research on any prospective attorney’s reputation to ensure you know what you are going ahead with. This can easily be done by reviewing previous client testimonials and their success rate in previous cases, as well as going through online reviews. A solid track record of successful outcomes can instil confidence in their ability to represent you and your matter effectively.

Attorneys You Can Trust

Family law attorneys in South Africa are an integral component of the country’s legal system. They provide invaluable assistance to their clients, individuals in need of legal guidance and families grappling with legal issues related to family matters. When faced with a family law matter, seeking the expert assistance of a qualified and reputable family law attorney is essential for achieving the best possible outcome while minimising any stress and uncertainty.

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