What is divorce?
A divorce is a legal separation of a couple. If you have a civil marriage your divorce will be dissolved using the Divorce Act. Marriages in terms of African Customary Law are ended using civil . This means that the marriage will be dissolved using the Divorce Act but certain conditions may apply. Who qualifies for a divorce? You need a reason to get divorced. In terms of the Divorce Act, a divorce can in the following circumstances:
Step 1: Get legal advice If you're considering a divorce, get help from a lawyer who specialises in divorce. There are many rules on divorce. Your marriage agreement may influence your divorce process. For instance, if you're married in community of property, your shared property may be divided equally between you and your partner. It is recommended that you seek legal advise before commencing with a divorce in order to make sure you obtain everything you have a right too and to make sure your documents are correctly formulated. Step 2: Prepare your documents When applying for a divorce, you will need certified copies of the following docuements:
Step 3: Applying for divorce There are 2 types of divorce; uncontested/unopposed divorces and contested/opposed divorces. Uncontested divorces are easier because both parties agree to the divorce and the divorce settlement. You can apply directly with the court either at the High Court or Regional Court ( not recommended) Alternatively, your divorce attorney will prepare all your documents and approach the Court to apply on your behalf. This is highly recommended as your documents will be correctly drafted, it will save you time and you do not have to run around on your own. Getting help You don't need to get through the challenges of going through a divorce, on your own. Tim van Rooyen and Associates are here to help you. Feel free to contact us for more information.
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Divorces can be intricate journeys, and within South African Law, Rule 43 adds depth to the understanding of spousal maintenance. Here, we delve into the realm of spousal maintenance within the context of Rule 34 and how it shapes the financial aspect of divorce.
Deciphering Rule 43: Rule 43 of the Uniform Rules of Court governs the application for maintenance pendente lite, a Latin term meaning "during litigation." This rule allows a party to request temporary spousal maintenance during the divorce proceedings to cover the financial needs of the dependent spouse. Factors Considered Under Rule 43: South African courts take various factors into account when considering an application for maintenance pendente lite:
Applying for Maintenance Pendente Lite: To apply for maintenance pendente lite, a formal application needs to be made to the court. This involves providing financial disclosure and supporting documentation. The court will then assess the application and make a decision based on the evidence presented. Modification and Termination: Maintenance pendente lite orders are not set in stone and can be modified or terminated if circumstances change. This underscores the importance of ongoing communication and, if necessary, seeking legal assistance to ensure that the order accurately reflects the current situation. Contact Tim van Rooyen and Associates divorce attorneys in Port Elizabeth for expert assistance. In conclusion, Rule 43 of South African Law plays a pivotal role in ensuring financial fairness during the divorce process. However, its application can be complex, highlighting the significance of seeking professional legal guidance. If you're facing a divorce under South African Law and spousal maintenance is a concern, consulting a qualified family law attorney is crucial to navigate this legal terrain and secure your financial stability. [Legal Disclaimer] This blog post is for informational purposes only and does not constitute legal advice. Consultation with a qualified family law attorney in South Africa is recommended for accurate guidance tailored to your specific situation within the framework of Rule 34 Ending a marriage is never an easy process as it evolves many emotions and fears.
However, when the spouses are able to remain civil and agree between themselves on how to divide their assets, deal with custody and contact of the children, and handle any other matters, they may wish to consider an uncontested divorce. It still may be hard for divorcing couples to accomplish this in many instances, but the benefits can be great under the right circumstances. THE PROS Uncontested divorce offers divorcing spouses the chance to end their marriage quietly, quickly and with dignity. The most obvious advantage of an uncontested divorce is its cost. This is because the divorce attorney will not need to draft extra litigation documents or letters. The low cost is not, however, the only advantage of uncontested divorce. If the level of conflict between the two spouses remains low, an uncontested divorce offers a way to keep it that way. The cooperation extends into the post divorce environment creating a better living environment for the children post divorce. You are also more likely to keep more of your assets in your pockets and out of the hands of us lawyers, a liquidator to liquidate the joint estate, actuaries and others required to put on a full divorce proceeding. THE CONS An uncontested divorce is not recommended when one spouse is bullying the other spouse to accept terms and conditions that are not fair. If you are in this situation you should always seek legal advise from an independent attorney to review the proposed separation terms and advise you of your rights. Uncontested divorce is also a bad idea when the parties are not able to talk with each other without fighting. If your spouse refuses to have any discussion with you about divorce, or every conversation ends in a screaming match, but you are determined to move forward with divorcing, you will likely need to move forward with a contested divorce and simply rather issue a full detailed divorce summons. HOW BEST TO DEAL WITH A UNCONTESTED DIVORCE The first thing you should do is schedule a consultation with a divorce attorney. If you are considering a uncontested divorce both parties can consult with one attorney in order to obtain advise on how to divide their assets and how to deal with joint parenting post divorce. After the initial consultation the divorce lawyer will then draw up a deed of settlement agreement whereby all the terms and conditions of the divorce are recorded. Generally this will deal with assets such as homes, pensions, motor vehicles to children care and debt. The attorney will then draft a divorce summons in order to get the divorce action in court. Thereafter, a hearing date can be arranged. If you are considering divorce we encourage you to come discuss the option of uncontested divorce with our divorce attorneys. I live in another country and no longer live in South Africa, can I get divorced? I wrote some months ago about international divorces in South Africa, however, we would like to provide more information for spouses considering divorce but who no longer live in South Africa. If you were married in South Africa, it will be far more cost effective and take less time by simply getting divorced in South Africa opposed to going to a local attorney in the country you are currently residing in. I would like to highlight the process that Tim van Rooyen Attorneys uses to effect International Divorces in South Africa: The procedure will start with a consultation via Zoom/Whatsapp video call, this so we can get all your information needed for a divorce summons and to be able to draft a deed of settlement. We will then draft a deed of settlement. Thereafter, the parties sign the agreement in their home country and scan it and e-mail it back to us. We then draft a summons and particulars of claim for a divorce. In order for the court to have jurisdiction we do a Edictal Citation and a Substituted Service application, this to we can legally serve the divorce summons on your spouse by e-mail in a foreign country outside of South Africa. Later on after the above step, we launch an application in court to lead evidence in court via Zoom or by way of affidavit. We then attend court on your trial date and either lead your evidence via Zoom or affidavit and the court will declare you divorced. The court will then send your information to the South African Home Affairs to have your marital status updated. Should you like more information, please contact me via e-mail or call us. Getting a divorce in South AfricaThe divorce process in South Africa can be a straightforward procedure or a very long-winded one. It is always advisable to equip yourself with as much knowledge as you can. A Marriage in South Africa must be dissolved in a court. You will need to state that you and your spouse can no longer live together and won’t be able to resolve your differences. Reasons for ending your marriage:
What do I need to get a divorce?You and your spouse will need to discuss a few aspects around the divorce. If this is not an option, you would need to ask your lawyers to mediate. Before a divorce can be granted, you will need to show or prove that you have solutions for the following matters: 1. Custody of the children. Who will have custody of your children? Arrangements will need to be in place for access to the children before the court can make a ruling. The court can restrict access to either party if it believes seeing a parent isn’t in the best interests of the child. 2. Maintenance Payments that will be made and how many will be made? The court will issue an order confirming who pays what. If the two parties can’t agree on payments, then the court will rule on their behalf. 3. Property and asset division. Normally the assets and debts are shared during a divorce, depending on your antenuptial contract. Once your divorce summons is sent, your spouse has 10 days (or 20 if they’re in a different province) to respond. When applying for a divorce, you’ll need the following documents:
Please feel free to give us a call for a divorce consultation.
Timothy van Rooyen 7 Bird Street, Central, Gqeberha Phone: 041-0040086 / 0817874404 E Mail: [email protected] |
AuthorTimothy van Rooyen Port Elizabeth Attorney, He has extensive knowledge in the industry, specialising in Divorce Law. Archives
July 2024
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