When couples encounter difficulties in their marriage, they have two options; they can attempt to salvage the relationship by seeking counselling, or if reconciliation seems unlikely, they may opt to terminate the marriage through a divorce.
There are only 2 grounds for divorce in South Africa, namely the irretrievable breakdown of the marriage and mental illness or continued unconsciousness of the one spouse.
The 3 types of divorces:
UNCONTESTED DIVORCE
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MEDIATED DIVORCE
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CONTESTED DIVORCE
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- This is the swiftest and most cost-effective form of divorce the three types of divorces.
- Both parties reach a mutual decision to end the marriage and collaborate to reach an agreement on various aspects of the divorce, such as asset division, maintenance, child custody and the primary care and residence of the children.
- The spouses may choose to seek advice from an unbiased and impartial attorney to safeguard their interests and to prepare the formal settlement agreement on their behalf.
- This agreement encompasses the terms agreed upon by both spouses and is signed by both parties.
- Subsequently, there is no trial, only the Plaintiff will appear in court and the signed agreement will be made an order of court.
- Uncontested divorces can be concluded within 12 weeks.
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- Compared to uncontested divorces, these types of divorces tend to be more expensive and time consuming.
- Additionally, this type of divorce can lead to higher emotional distress for both spouses and their family members, especially when one spouse is reluctant to pursue the divorce.
- With this type of divorce couples who are unable to reach a consensus on the terms of the divorce settlement seek the assistance of an attorney and/or a professional mediator, whose role is to facilitate negotiations between the spouses, helping them to reach a mutually agreeable settlement.
- The main objective of mediation is to help the spouses set aside their immediate conflicts and focus on achieving a fair and amicable agreement that allows them to move forward with their lives and create a better future.
- Once the mediation process is successful, the attorney can begin to draft the settlement agreement, which is signed by both spouses and will ultimately be made an order of court.
- Mediation can significantly reduce costs associated with contested divorce proceedings and can be finalized within a few months.
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- This type of divorce is the least desirable type of divorce.
- Contested divorces can be protracted, taking several years to conclude, and they can cause significant emotional and financial distress to the spouses and family members.
- These divorces occur when spouses are unable to reach an agreement on various aspects of their divorce.
- Common points of contention include issues related to asset division, maintenance, and custody pertaining to children.
- Emotional reasons may also lead to one or both spouses to resist settling the divorce.
- In contested divorces, both partners are required to make multiple court appearances to allow the court to decide on the terms of their divorce. Consequently, this often result in exorbitant legal expenses, profound emotional turmoil, and the process may extend for three years or even longer before reaching a resolution.
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- What will happen to your children when you and your spouse decide to have your marriage dissolved?
You and your spouse will have the option to come to an agreement on matters concerning your children, whether they are biological or adopted children. In situations where a mutual agreement cannot be reached, the court will take charge of deciding the children’s arrangements, taking into account the specific circumstances of the matter, along with input and recommendations from a Family Advocate.
- What will happen to your property when you and your spouse decide to have your marriage dissolved?
The distribution of property can be resolved through mutual agreement between both spouses. In instances where no agreement can be reached, the division of the property will be determined based on whether the spouses were married in community of property or out of community of property (with or without the accrual system).