Divorce Attorney Cape Town, Johannesburg, Pretoria, Durban

Successful divorce doesn't have to be an oxymoron

Divorce is everywhere. It shouts at us via tabloid and newspaper headlines at the grocery store checkout. It touches us personally when, as adults, our parents finally call it quits, or our own starter marriage fizzles. It's also universally ugly. Between custody battles, money and maintenance squabbles and bitterness, divorce usually leaves one of the parties on the short end of the fair stick. And divorce is always heartbreaking – it is the final chapter in a book that we never wanted to read in the first place.

So, to talk about having a "successful divorce" sounds unrealistic: a pie-in-the-sky idea plucked from some smarmy self-help book. It's not, says Deborah Moskovitch, who weathered a seven-year divorce and went on to write The Smart Divorce: A Team Approach to Managing the Issues of Divorce. "Being smart about divorce really means moving forward with hope and confidence." Hiring a good Divorce Attorney in a contested divorce or visiting an online divorce service like eDivorce, South Africa's No. 1 Online Divorce Service in an uncontested divorce is no brainers but head's up: getting your legal house in order is only part of it. "You've got to rebuild your life," she says. "Divorce is so common today that people underestimate how powerful it is; how powerful those emotions are."

Estimates from Statistics Canada in 2008 suggest that 39 per cent of marriages in Canada will end by the couple's 30th wedding anniversary. The percentage is higher in the United States -- at 44 per cent -- but still short of the "half of all marriages end in divorce" stat that gets bandied about. South Africa is not far behind. One may argue that more than one-third of married South African couples will eventually go their separate ways. Since that's reality, those starting down the rocky road to divorce should become informed about this life-altering event before emotions take over.

The Herald Newspaper in Canada spoke with divorce experts who spoke at a seminar recently, to gather some tips for a successful divorce. They all agreed that "one needs to put the kids first and understand their needs during separation and divorce. Often what happens is, in the process, (parents) are remiss in understanding what the experience is like for kids".

Four tips:

1. Parents need to love their children more than they dislike their parenting partner. Put aside differences for the kids' sake.

2. Shield children as best you can from parental conflict. No fighting or name-calling in front of the kids.

3. Give children permission to love and connect with both parents and extended family (unless there is abuse happening).

4. Understand that children will experience loss and grief, too, and that their feelings will be different from your own. People in the midst of divorce make emotional decisions instead of educated ones. One needs to educate oneself and be prepared. People spend more time researching a car. A 50-50 property split is not always equal and one need to understand the decisions you're going to make."

Four tips:

1. Seek out professional support. Finding a therapist is just as important as hiring a good divorce attorney.

2. Money is always an issue, even when both parties claim it isn't.

3. When it comes to splitting up investments, understand the scope of them -- the risks, outlook, tax implications, costs or fees involved -- and make an informed decision.

4. Women need to get on the ball with their financial situation.

Deborah Moskovitch talked to more than 100 divorce experts when researching her book The Smart Divorce. She recommends people put together a team of professionals to help them navigate the split. Try to keep your emotions outside of the divorce process. When emotions take over, you end up with massive legal bills. Work on rebuilding your post-divorce outlook. You will get through divorce and get on with your life.

Compiled by Divorce Attorney and eDivorce leaders in both contested and uncontested divorces in South Africa.

 

MAINTENANCE PART ONE

A INTRODUCTION

Legally, a duty of support exists between people who have a familial bond or certain relationship between each other. A person who owes another person a duty of support may have to pay maintenance for that person, if the person has the means to provide maintenance and if the receiving person is in need of maintenance. The following categories of maintenance exist: 1. Child 2. Partners/surviving spouses The first category will be discussed below and the second category will be touched upon. Please note that this information does not constitute legal advice and that it is always wise to contact an attorney for in-depth legal advice, according to your specific circumstances. There is also a third type of maintenance that is not discussed in this document and that is the right of parents, in certain circumstances to claim maintenance from their children.

B. CHILD MAINTENANCE

Maintenance is in the best interests of the child.

1. What rights to support do children have?

In terms of the Constitution of South Africa (which is the highest law of our country), every child has the right “to family care or parental care, or to appropriate alternative care when removed from the family environment”.

Every child has the right to basic necessities such as:

food; shelter; clothing; medical and dental care; education; and social services.

Children should get these basic needs from their parents or relatives. This support given by parents or relatives is called maintenance. Parents or relatives maintain children directly when the child lives with them. Parents or relatives maintain children indirectly, when the child lives with someone else, by paying maintenance, or money to support the child and provide his or her basic needs.

2. Who has a duty to support (maintain) children?

The law requires a child to be supported or maintained by:

• both his/her parents, whether married, living together, separated or divorced;
• through the estate of the deceased parent(s) of the child, whether or not the parents were married; and
• both his or her grandparents, in certain cases. This legal duty is called ‘the duty to maintain’ or ‘the duty to support’.

Both parents owe a duty to support an extra-marital child, according to their means. Both parents must contribute to ‘lying-in’ expenses – these are the mother’s expenses immediately before, during and immediately after the birth. It is also important to remember that an adoptive parent owes a duty of support towards his/her adopted child and that, when adoption takes place, the child’s natural parents are no longer required to support the child.

3. What is the maintenance system?

When parents separate, many parents voluntary pay maintenance to the parent living with the child. Other parents fail to honour their legal duty to maintain their children. The maintenance system is the system of courts, which ensures that parents honour their duty to maintain their children. Each magistrate’s court operates as a maintenance court, within its area of jurisdiction.

If you as parents cannot reach an agreement regarding maintenance, then a magistrate in the maintenance court will make a ruling regarding how much maintenance each of you must pay - a maintenance court can order a parent who does not live with his or her child (due to divorce or child born out of wedlock etc) to pay maintenance for the support of his or her child.

The maintenance system therefore ensures that parents not living with their children make a fair financial contribution towards the support of their children. Maintenance for children can be claimed at any time, including when a divorce is pending, as part of the divorce order or after the divorce. It must be noted that the maintenance court does not have the power to grant an order for maintenance on divorce – this means that in divorce proceedings at the High Court, you may request for a maintenance order that is granted at the same time as the divorce order. However, the maintenance court does have the power to vary maintenance orders issued by the High Court. A maintenance order made at the time of divorce may include provisions for any unborn child of the marriage.

Compiled by eDivorce South Afica's No. 1 Online Divorce Service

Source: Legal Info

People somehow disregard the importance of an Ante nuptial Contract and many embark on a marriage without due cognisance of the repercussions that might follow at a later stage, especially when the marriage end in divorce.  No one goes into a marriage contemplating a divorce but when you consider that the Ante nuptial Contract governs what will happen to your assets and liabilities on divorce or death, it makes lots of sense that considerable thought should be given to concluding it and that its contents should be fully understood by all parties concerned. Unfortunately many people are more drawn into the eyes of their spouse prior to the marriage than to the importance of the wording of a proper Ante nuptial Contract.

The matrimonial property regimes in South Africa:-

Marriage in Community of Property

Where you did not conclude an Ante nuptial Contract prior to your wedding day, you will automatically marry in community of property. 'In community of property' means that everything the couple own, and their debts, from before their marriage are put together in a joint estate. And everything they earn or buy after their marriage is also part of this joint estate. Any money or possessions belonging to either of the spouses at the time of the marriage, or acquired by them at any time thereafter, cease to be the private property of the one person and become part of a joint estate in which each of the partners has an equal, undivided share. On termination of the marriage, the husband and wife are each entitled to a half-share of the joint estate and they are jointly liable for any liabilities. A major disadvantage is that if one partner becomes insolvent, the other is protected only if he or she owns property that does not form part of the joint estate. Everything in the joint estate will be attached and sold off to pay any creditors.

Marriage out of Community of Property

Each spouse retains his or her own assets and liabilities whether acquired before or during marriage. There is no sharing of profits and losses. Both spouses have full and independent contractual capacity. Upon death or divorce, each spouse keeps control over their own assets. This clearly gives parties absolute independence of contractual capacity and protects the estates of each party against claims by the other party’s creditors. There is no provision for any sharing whatsoever. A party who contributed to the other party’s estate whether in cash or otherwise would have a heavy onus to prove that he or she was entitled to anything from that party’s estate on dissolution of the marriage. Where one party stays at home to raise children and does not contribute financially towards the marriage and the other spouse works and accumulates assets, the former may find herself with nothing and no claim to the assets of the latter. The marriage is governed by a contract known as an ante nuptial contract which is concluded by the parties before the marriage. If the marriage occurred after 1 November 1984, the contract had to specifically exclude the system of accrual. In the absence of this exclusion the rules of accrual will automatically apply.

Marriage out of Community of Property with Inclusion of the Accrual System

In most cases the accrual system is, perhaps, the fairest marriage system for the majority of couples. Before the introduction of the accrual system in 1984, if prospective spouses chose to be married out of community of property, there was no form of sharing between them of what was built up during the marriage. The accrual system was introduced to remedy this. The Matrimonial Property Act 88 of 1984 brought with it the “accrual” system which permits a form of sharing, consistent with a primary objective of marriage, but permitting retention of each party’s independence of contract and ability to retain their own unique separate estates. “Accrual” means increase. The accrual system is a form of sharing of the assets that are built up during the marriage. The underlying philosophy in respect of the accrual system is that each party is entitled to take out the asset value that he or she brought into the marriage, and then they share what they have built up together. One spouse's property cannot be sold to pay the other's creditors if the other becomes insolvent - in contrast to the case where the parties are married in community of property. It is of utmost importance that a party wishing to enter into an Ante Nuptial Contract must fully understand what it is they are signing. It is for this reason that a standard form contract cannot be used, that consultations cannot be held over the phone or by means of email and that, unfortunately.

The important features of an accrual marriage are in essence the following:-

* Each party retains his or her own estate. Each party may accumulate assets and incur liabilities without interference from or assistance of the other spouse. The estate of each party is determinable separately.

* The monetary value of the smaller estate is subtracted from the monetary value of the larger estate, the difference is split, and the party having the larger estate pays half of the difference between the two estates to the party with the smaller estate.

* At dissolution of the marriage, the estate of each party is calculated by listing all assets, listing all liabilities, subtracting liabilities from assets and arriving at a net asset value.

* In practical terms this amounts to a similar division to a marriage in community of property. However there are certain crucial factors of an accrual marriage which add complexity and much more freedom of choice.

* When drafting the Ante Nuptial Contract, the parties can each decide to exclude certain assets. The effect of excluding an asset will be that it does not feature on the asset statement at dissolution of the marriage and is completely excluded from the calculation. Assets which are not properly described can cause huge problems when the executor or the divorce attorney tries to decide what to do with it in calculating the net accrual value.

* To exclude either a specific asset, or a commencement value, or both (which must be separate and not derived from the same asset), can effectively ensure that couples share only what they choose to share and keep separate any item or items, or values, which they do not believe it fair to share (for example something acquired before the relationship commenced).

* Parties not wishing to exclude specific assets may exclude a certain sum of money which is the agreed equivalent of assets which they do not wish to share, and which is termed a “commencement value”. Excluded from the Accrual Certain property belonging to either the husband or the wife may not be taken into account when the accruals are worked out:

* Any damages awarded to either spouse for defamation or for pain and suffering; * Any inheritances, legacies or gifts that either spouse has received during the marriage, unless the parties have agreed in their antenuptial contract to include these or the donor has stipulated their inclusion;

* A donation made by one spouse to the other. This is not taken into account as part of either the giver's or the receiver's estate, with the result that the giver cannot recover part of what he or she gave and the receiver need not return any of it.

Calculating the Accrual

The accrual is calculated by subtracting the net asset value of his/her estate at the commencement of marriage from the net asset value of his/her estate at dissolution of the marriage. Example: If spouse C had a net asset value of R10 000.00 at the commencement of the marriage (his/her "initial value") and a net asset value of R100 000.00 at dissolution of marriage (his/her "end value") then the accrual to his/her estate is R90 000.00. If the initial value of the other spouse B was R20 000.00 and hi/her end value R200 000.00, it follows that the accrual to his/her estate is R180 000.00. Net accrual is calculated by subtracting the "smaller" accrual from the "larger" accrual. In the above example: R180 000-00 - R90 000-00 = R90 000-00. In accordance with the Act, C (the spouse with the smaller accrual) acquires a claim against B (the spouse with the larger accrual) for one half of the net accrual, namely - R45 000.00. If you do intend to get married, it is well worth your while to consult a reputable attorney, to discuss your particular requirements and ensure that you fully understand the application of the accrual system to your particular situation.

An Ante Nuptial Contract must be signed before the marriage and must be signed in the presence of a notary and two competent witnesses. The notary will then register the contract in the local registry of deeds. If parties wish to conclude an Ante Nuptial Contract after their marriage it is necessary to launch an application to the High Court.

According to statistics, one in two marriages in South African end in divorce. During 2007 there were close to 40000 divorces in South Africa, which is a tragic reality. When you find yourself in a contested divorce (where you and your spouse can' t agree on matters such as finances, custody, division of your assets etc) the best option would be to seek the services of an attorney. When the divorce is uncontested, i.e. where you do agree with your spouse on the disputes mentioned above, you basically have two choices:

1) Go and see an attorney This can be costly as some attorneys charge fees of up to R 8 000 for an uncontested divorce. A typical divorce can be quite bitter as every element of the agreement is disputed by both parties, so legal costs can easily spiral out of control. Some attorneys' bills can run into tens of thousands of Rands.

2)

eDivorce.co.za offers an excellent way of minimising legal fees and the emotional stress attached to divorce. The process is simplified and takes the sting out of the divorce process. Provided, however that both parties are in basic agreement over the financial settlement, custody issues and that it is an uncontested divorce.

The edivorce.co.za service makes South Africa' s divorce system more accessible and more affordable to the general public by affording the option to start the divorce process online. With people struggling to make ends meet during the credit crunch we face, eDivorce.co.za is a definite alternative for couples seeking an uncontested divorce in South Africa. Divorce is a process that few people undertake without serious consideration of its consequences. In offering such a service, eDivorce notes on its website that the goal is not to sanction or promote divorce but to provide a simple online service for making the divorce process less expensive and stressful. There is a clearly an upswing in European countries as well as in the US in the number of online Divorces. In the United Kingdom online Divorces have increased by well over 55% in the past year and more and more people are taking DIY divorce route to save money.

In addition eDivorce.co.za also offers valuable information on other aspects of divorce, such as its physiological effects, information on counselling, custody, maintenance and domestic violence disputes, these are all freely available on the web page and really valuable information to have and by far the most comprehensive divorce resource for anything you need to know about Divorce and its consequences. Users are also able to read and purchase books on divorce on the site and follow a blog on divorce issues, rebuilding your life, relationship tips and ways to cope with the emotional stresses caused by divorce.

Lately we received quite a number of enquiries at Divorce Attorney and eDivorce from South Africans living overseas who wish to divorce a spouse that moved back to South Africa. If a spouse lives overseas, the High Court in South Africa may be approached by way of an application to obtain an edictal citation order. An edictal citation order affords permission to serve divorce documents on a spouse in a foreign country. Edictal citation is a procedure according to which a legal document such as a divorce summons is served by a sheriff (in some countries known as a “service processor”) in a different country. In today’s society people move all over the world for various reasons and very often the country in which a person gets married is not necessarily the country in which they get divorced. Often a newly married couple will get married in South Africa, move overseas, only then to discover that their relationship is not working out, and one of them then moves back to South Africa. If you want to have a divorce summons served overseas you will first have to convince the court by means of an affidavit that there is no other way to have the divorce summons served, and in that affidavit annex full details of the sheriff to use to serve the summons in the foreign country. Edictal citation is an expensive procedure to get divorced, as instead of paying R100 to R200 to the sheriff in South Africa, a party may have to pay R3000 to a sheriff in London (±£200 - ±£300). It is also quite a lengthy procedure and process as it involves communicating with people in a foreign country, as well as the posting of documents overseas. After serving of the summons in a foreign country, a spouse will have a month to defend the action. If he or she ignores the summons or, if he or she defends it, after reaching settlement of the financial terms, the attorney acting on your behalf will enrol the matter for a date that has been pre-arranged with the Registrar of the High Court.