17 Important South African Divorce Terms Everyone Should Know
Going through a divorce can be a challenging and emotionally charged experience. With the rise in divorce cases nationwide, understanding the legal terminology associated with the process is crucial for making informed decisions.
Divorce terms range from the type of divorce, such as a contested or mediated divorce, to the different types of marriage regimes and terms associated with child custody and all aspects surrounding post-divorce child care, including maintenance and parent plans.
Whether you are thinking of getting a divorce or already on your way to getting a divorce, there are several terms associated with this process that you should understand from the get-go. We will break down 17 important divorce terms to help you navigate the complexities of divorce, specifically tailored to the South African legal context.
1. Contested Divorce
A contested divorce ensues when the spouses cannot agree on vital issues such as property division, child custody, or financial support. In such cases, the matter is taken to court, and a judge makes the final decisions. In this type of divorce, it is typical to have to appear in court multiple times, with the divorce often taking years to resolve with a high-cost expectancy.
2. Uncontested Divorce
Conversely, an uncontested divorce involves spouses who can equally agree on all facets of their divorce, including aspects such as spousal support, child custody, and division of assets. This streamlined process is generally faster and less expensive.
3. Mediated Divorce
Mediation involves the help of a neutral third party who aids spouses in communicating and negotiating to settle outside of court. It is a more expensive and time-consuming process than uncontested divorces but is generally quicker and more cost-effective than contested divorces.
Once an agreement is reached, attorneys draft the official settlement agreement, signed by both parties, which subsequently becomes a court order.
4. Grounds For Divorce
In South Africa, there are three main grounds for divorce. Understanding these grounds is essential for initiating the legal process. According to the Divorce Act 70 of 1979, the three grounds for divorce include:
- Mental illness – The defendant would need to be a resident at an institution or a convicted mentally ill prisoner. Two psychiatrists, one appointed by the court, would need to assess the defendant’s mental capacity and prospects for recovery.
- Irretrievable breakdown of the marriage – Such as when the partners have been separated for a continuous year, one or both have committed adultery (considered a symptom of irretrievable breakdown) or if the defendant has committed multiple crimes or is incarcerated.
- Continuous unconsciousness – The court may consider a divorce if one spouse has been in a state of continuous unconsciousness for a minimum of six months, provided that evidence is presented by two medical practitioners, one of whom is a court-appointed neurologist or neurosurgeon.
5. Married In Community Of Property
This term refers to a matrimonial regime where spouses share equal ownership of all assets acquired before and during the marriage. Debts are also jointly owned.
6. Married Out Of Community Of Property With Accrual
In this scenario, spouses maintain separate estates during the marriage, but they may share in the increase in the value of each other’s estates upon divorce.
7. Married Out Of Community Of Property Without Accrual
This marital arrangement signifies the complete separation of assets and liabilities. Each spouse maintains exclusive property ownership, and no financial sharing occurs upon divorce.
8. Pension Interest
Pension interest involves the non-member spouse’s entitlement to a portion of the pension fund of the member spouse. While the court can order the allocation of this interest at the time of divorce, the payment is deferred until the pension benefit accrues to the member spouse, providing continued growth for both parties.
The non-member spouse, however, can receive the pension interest as a lump sum or reinvest it at the date of divorce, and the clean-break principle allows for immediate payment or transfer in some instances. It’s crucial to consult with a divorce attorney to navigate the complexities of individual circumstances and pension arrangements.
9. Family Advocate
A Family Advocate is a professional appointed by the court to represent children’s best interests in divorce and family law matters. Their role is crucial in cases involving child custody and support.
10. Legal Representation
Obtaining legal representation is highly advisable during divorce proceedings. A qualified attorney can provide guidance, negotiate for you, and protect your rights.
11. Child Custody
Child custody establishes which parent is responsible for a child’s care, control, and maintenance. It’s a critical aspect of divorce proceedings, with several custody arrangements. Navigating custody arrangements during divorce can be a complex and emotionally charged process.
Gone are the days of automatic custody grants to mothers, reflecting a modernized approach where both parents are actively involved in their children’s upbringing. The Children’s Act 38 of 2005 emphasizes the importance of considering the child’s interests in any care and contact arrangement.
The main types of child custody include:
- Legal custody grants the right to decide about the child’s upbringing, typically shared by both parents, unless circumstances warrant otherwise.
- Physical custody involves the child’s living arrangements, with options including:
- Sole custody – where the child primarily resides with one parent
- Joint custody – where residential time is evenly divided, practical considerations such as proximity to each other and the children’s school often influence the feasibility of joint custody arrangements.
Striking a balance that suits all parties, especially the child, is essential in negotiating divorce agreements.
Guardianship pertains to the legal responsibility for a child’s well-being. Divorce may involve appointing a guardian if both parents cannot care for the child. Legal rights and responsibilities include:
- Managing a child’s interests
- Financial aspects
- Legal matters
- Aspects such as providing consent for medical treatment, marriage, adoption, and international travel
Typically, South African courts award joint guardianship to both parents, but sole guardianship may be granted to one parent or a non-biological caregiver in specific circumstances.
13. Parenting Plan
A parenting plan outlines each parent’s rights and responsibilities concerning the children after divorce. It includes details about visitation schedules, decision-making, and communication.
There are two main types of maintenance in divorce cases. These include child maintenance and spousal maintenance. Spousal maintenance, or spousal support, is financial assistance provided by one spouse to the other after divorce. It aims to ensure that both parties can maintain a similar standard of living.
Child maintenance is the financial assistance that all children have the legal entitlement to receive, and both parents, despite their marital status, are mandated to provide such financial support. The financial responsibility encompasses the child’s education, care, and upbringing. The monthly earnings of each parent influence the amount paid to the primary caregiver.
15. Rule 43 Maintenance
Rule 43 Maintenance is a temporary maintenance order obtained during divorce proceedings to address urgent financial needs before the final settlement.
16. Divorce Process
The divorce process includes all the steps you will take, from initiating proceedings to obtaining a decree of divorce, and understanding what it entails is crucial for navigating the legal landscape successfully.
17. DIY Divorce
For those seeking a more cost-effective approach, a DIY divorce involves handling the process without legal representation. However, it’s essential to be well-informed and understand the potential risks.
As you embark on the divorce journey, familiarizing yourself with these key divorce terms is empowering. At Burnett Attorneys & Notaries, we’re here to guide you through the process and provide the support you need during this challenging time. For more information on divorce terms and legal assistance tailored to your situation, contact our experienced team today. Remember, knowledge is your greatest ally in the divorce process.