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Divorce

This article is not a do-it-yourself guide, but sets out the basic law related to divorce in the hope that a better understanding will help to lessen the trauma.

The breakdown of any relationship is stressful. The termination of a marriage relationship by divorce is a highly traumatic experience, not only for the husband or wife, but also for the children, the family and friends. More often than not, uncertainty about the parties’ rights and obligations is one of the major factors contributing to the tension.

Grounds for Divorce

The grounds for divorce are the irretrievable breakdown of the marriage or the mental illness or the continuous unconsciousness of a party to the marriage. The main ground (irretrievable breakdown) occurs where the marriage relationship has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship. Evidence of irretrievable breakdown will lie in instances where, for example, the parties no longer live together as husband and wife, the parties continuously argue with each or don’t communicate with each other on a meaningful level or at all, or one of the parties has committed adultery and the other party finds such adultery irreconcilable with a continued marriage relationship. There are numerous other factors which can lead to the irretrievable breakdown of a marriage and can constitute evidence of the grounds for divorce.

Custody and Maintenance of Children

The court granting a decree of divorce may grant any order it sees fit regarding custody of children, access/visitation rights, maintenance and so forth. The parties themselves should attempt to reach agreement on these issues but in the absence of agreement, a court will make a decision based on what is in the best interests of the child. As regards maintenance, the normal rule is that the parent in whose care the child is placed will be entitled to maintenance from the other parent. Both parents are responsible for the maintenance of their children. The amount of maintenance is based on the needs of the child and the level of earnings of both parents. Not only monetary payments but also payment of medical expenses and school fees can be included in the maintenance order.

Maintenance of the Parties

During marriage, there is a reciprocal duty on spouses to support each other financially. This duty expires upon divorce though the divorce court may make an order for payment of maintenance by one party to the other. The factors a court will take into account in reaching a decision include the age of the party seeking maintenance, the duration of the marriage, the existing and prospective means of the parties as well as any other factors which the court deems relevant.

The Assets

On divorce, the assets of the parties may be re-distributed. Where the marriage was in community of property, unless there are exceptional circumstances, on divorce there is an equal division of the joint estate, that is, the parties share the assets and bear the liabilities equally. Where the marriage was out of community of property prior to November 1984, the divorce court can order a redistribution of assets of one party in favour of the other if the court is satisfied that it would be equitable and just to do so. The court will take into consideration the contribution made either directly or indirectly by a party to the preservation or increase of the value of the marriage assets. In respect of marriages contracted after November 1984 with an antenuptial contract, the assets would be dealt with in accordance with that contract unless the parties agree otherwise.

Costs

When you consult an attorney about a divorce you buy time and expertise. Fees are charged in accordance with the time and expertise spent on your case. It is, therefore, not possible to stipulate how much a divorce action will cost, but the following guidelines should help:

  •  At your first consultation with the attorney, discuss the entire question of costs. Your attorney will be quite happy to do so and work out an estimate of costs.
  •  Prepare yourself for each consultation and see to it that you have all the necessary documents.
    Thus, for instance, at the first meeting your attorney would want to see your marriage certificate, as well as your antenuptial contract. This saves time and cuts down on the number of consultations.
  •  Remember to be fair and reasonable. A bitter fight to the end where reasonableness does not count, will be a costly affair. More often than not your attitude may determine the length of the action and consequently the costs.

Conclusion

To lessen the trauma of the breakup of the marriage and the expense of the divorce, do not try to apportion blame but rather try and reach a fair settlement as quickly as possible. Above all, where children are involved, be unselfish and be mindful of what is best for them.

This article is only a guideline of the most important principles. For proper advice you must consult your attorney. Once you have consulted your attorney, do not take advice from well-meaning friends or family without first conferring with your attorney.

 

Legal Topics

For the information of our clients, we have prepared articles on certain aspects of law that may be of interest. Please note that these are not detailed expositions of the law but are for information and interest only. Please obtain professional advice before you act in any way.