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Family Divorce Mediators

 * admin@familydivorcemediators.co.za
 * 068 012 8797

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MEDIATION - SOLVE YOUR DISPUTES ON YOUR TERMS

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MEDIATED DIVORCES EXPLAINED

MY PARTNER AND I ARE CONSIDERING A DIVORCE

Divorce should never be the first choice when marital
problems arise. If you believe that a marital counsellor
may be able to help seek counselling. Should a divorce
be inevitable, speak to a mediator. Under South African
law one cannot prohibit a partner from approaching the
Court for a divorce – not participating in the divorce
could negatively affect the outcome as that Party would
be denied the opportunity of giving inputs to the Decree
of Divorce.




LEGAL GROUNDS FOR A DIVORCE

Either of the Parties need to prove to the court that the
marriage has broken down irretrievably. The conditions
for this include, inter alia:

 * A spouse has moved out of the house
 * Abuse of any kind by either of the spouses
 * Adultery
 * Habitual criminality
 * Neglecting to support financially
 * Constant arguing





DIVORCE IN SOUTH AFRICA

Divorce is more than just the paper work. Divorce should be fair, family first
and future-focused. Despite your best efforts, your personal life may have
disintegrated to a point where you feel hopeless and helpless. The countless
fights and your partner’s behaviour may have left you feeling deflated and
defeated.
You may struggle with your day-to-day demands because of this emotional roller
coaster that just doesn’t seem to stop. The anger and disappointment may cloud
your better judgement. As expert divorce attorneys, we’re here to help.

 

read more

Divorce Agreement Guidelines
Divorce agreements enable spouses to leave the marriage and build new lives in a
wholesome and fulfilling way.
They set out guiding factors including the type of marriage and details of any
ante-nuptial contract entered into prior to the marriage, and confirm the
divorce settlement, including:
Maintenance payments to be made to a spouse or for children
Guardianship, custody and access to children
The division of assets including the home
Arrangements regarding medical aid and retirement plans and other relevant
matters
The agreement can also provide guidelines for other issues that are important to
the couple, for example how they will divide or continue to operate a business
they are both involved in. It allows the couple to clearly define how they will
divide, structure and conduct previously shared aspects of their lives in the
future.

Types of divorce in South Africa
There are essentially three ways to get divorced in South Africa. The type of
divorce procedure profoundly affects the practical matters of how long the
divorce procedure will take and how much the procedure will cost.
The three types of divorce include uncontested divorce, mediated divorce,
contested divorce
The longer and more contentious the divorce process, the greater the negative
impact on the family’s mental and emotional well-being.

Divorce with children
The relationship with your spouse is complex, and requires a divorce attorney
who is both discreet and professional. Through mediation and family law, we will
help you safely negotiate the split and secure care and contact rights that are
in the best interests of the child.
The idea of consulting with a divorce attorney could leave you feeling
apprehensive and disillusioned. You must act quickly and responsibly to avoid
children being caught in the middle.
For healthy closure, your needs and the lifestyle of your children must be
protected by putting a reasonable maintenance in place.

Child maintenance
Under South African law children have the right to receive financial
maintenance. Both parents, whether married or not, are required to provide
financial support for a child.
Maintenance amounts must be negotiated and finalised according to the
Maintenance Act 99 of 1998 and the Children’s Act 38 of 2005. Parents are
obliged to pay for their children’s upbringing. Their respective payments depend
on how much each earns.
The amount paid to the primary caregiver is based on the monthly earnings of
each parent and the cost of the child’s education, care and upbringing.
Maintenance orders are orders of the court. Failure to meet these obligations is
a criminal offence.

Grounds for divorce
In South Africa there are only three grounds for divorce, two of which are very
rare.
Irretrievable breakdown of the marriage
The relationship has deteriorated to the point where it cannot be restored.
According to the Divorce Act 70 of 1979, certain circumstances can be classed as
causing irreversible damage to a marriage:
Separation for a continued period of at least one year
Adultery: contrary to what some believe, and what was the case historically,
adultery in itself is not grounds for divorce. It is no longer possible to sue a
third party for “alienation of affection”. Adultery is the reason why one spouse
may feel there is no likelihood of reconciliation and thus the marriage has
irretrievably broken down
The defendant has committed multiple crimes and/or is serving time in jail
Mental illness
Continuous unconsciousness for a period of at least six months


FREQUENTLY ASKED QUESTIONS

What will happen to our Children?

Both Parties need to agree on who will be the primary caregiver. In recent years
our Courts have shown greater flexibility with regards to shared care (shared
custody), where the Children spend a period of time with one spouse and the same
period of time with the other (subject to age considerations – a social worker
may be appointed to compile a report in this regard).
Should the Parents not be able to agree, the Court – as upper guardian of all
minors – will decide, usually on recommendation by the office of the Family
Advocate. The Court may hold the Parties liable for the cost of a social
worker’s report.
Given the stress of the divorce itself, the Children should ideally not be
subjected to further distress. Mediation enables the Parents to work out their
differences and minimize the impact on their Children.

How will our property be divided?

If the Parties are unable to arrive at a  settlement, the court may decide to
liquidate the assets and divide the net returns based on the applicable marital
property regime.
Typically there is a loss in the value of the returns as the assets are
liquidated

Mediation is not limited by these processes: the goal is to find out-of-the- box
solutions and to lose as little as possible in terms of the value of the shared
estate. Where needs be the services of an expert (financial /
property / business) can be employed to this effect.

What is the difference between contested and uncontested divorces?

A contested divorce is typically where the Parties disagree on:

 * With whom the Children should live
 * Contact with the Children
 * Maintenance for the Children or the spouses
 * Division of the communal estate

 

Contested divorces usually entail multiple Court appearances which dramatically
increase the cost to each of the Parties.
Uncontested divorces are where the Parties agree on all aspects and sign a
Divorce Settlement Agreement, which the Court then incorporates into its Decree
of Divorce. Costs are substantially lower and the Parties do not need legal
representation.
At the end of the process the mediator instructs the Parties on how to file for
divorce without legal representation, or if the Parties choose, assists in
appointing a legal representative to file the case with Court.

The Parties appear before Court as a formality but there is no trial. Once the
Decree of Divorce is issued the matter is finalized and the Parties are required
to adhere to the Court order.

How does Child Maintenance work?

Every Parent is legally required to pay Child Maintenance until their Child is
18 years old. Should the Child not be self-supporting on their 18th birthday the
Parent is then required to continue paying until the Child can support
herself/himself.
Child Maintenance is payable in proportion to the Parents’ incomes, and include
all costs for raising the Child. The first step is to calculate the actual costs
(including housing, food, educational & medical expenses, etc.)


Consider the below example: (simplified)
Cost of raising Child R 5,000
Parent 1 Income R 20,000
Parent 2 Income R 12,000
Parent 1’s shares of Expenses 62.5%
Parent 2’s shares of Expenses 37.5%
Parent 1’s total Contribution R 3,125
Parent 2’s total Contribution R 1,875

Any expenses of the Child at both Parents’ houses are then calculated and
factored into the required Child Maintenance payments.

Do I have to pay Spousal Maintenance?

The mutual duty between spouses to maintain each other usually endswhen t he
marriage is dissolved – unless certain factors apply which demand otherwise.
If only one of the spouses was the breadwinner, the Court may award Spousal
Maintenance to them to either maintain the standard of living to which they had
become accustomed.

Here the Court will take into consideration factors like:

 * Assets obtained from the Divorce
 * Ability to re-enter the job market or generate an income
 * Age and Health
 * Reasons for unemployment if the person was not working for an extended period
   during the marriage
 * Duration of the marriage

The Court may decide to award Spousal Maintenance for a limited period of time
to enable a spouse to re-enter the job market.

Do both Parents have Parental Rights and Responsibilities towards the Minor
Children?

In terms of the Children’s Act 38 of 2005, Parents have the following rights and
responsibilities towards their Children:

To Care for their Child, to have regular Contact with their Child and to
maintain a meaningful relationship, to act as Guardian of the Child and to
contribute in respect of Child Maintenance.




WHAT IS MEDIATION?

Mediation explained

Mediation is a voluntary process of structured negotiation between two or more
Parties that enables the Parties to resolve any differences and arrive at
mutually acceptable solution to a legal problem. Because the solution is
designed by both Parties, the chances that one of the Parties will default or go
back on the agreement are substantially lower.

“Stella handled our mediation for contact with my children very well. She is a
diplomatic and sensitive mediator.”
—Anina B, 2 Sep 2014

At the end of the process, the Parties have the option of filing the divorce
directly with Court (full instructions provided), or to have a third party legal
representative file the divorce on their behalf. Please enquire for full
detailscon the difference between the 2.

Find out why over 60 of our country’s laws havecbeen updated in recent years to
accommodate Mediation as a critical component of the Legal process.

 

Contact Us



WHY MEDIATE?

Mediators are not lawyers. We do not represent one side at the expense of the
other’s financial, emotional, or even mental well-being. We assist both sides in
collaborating to find a solution.

Mediation is a type of Alternative Dispute Resolution (ADR) that tries to
resolve disagreements between parties outside of court (litigation).

When parties in a dispute litigate, they can pay significant legal expenditures,
and the process can take years. Mediation saves parties money by having a
skilled, impartial third party guide their discussion and eventually resolve
their issues in a fraction of the time.
Family Divorce Mediators specializes in Family Law mediation and may help you
speed up your divorce, create a parenting plan, and assist with child custody
issues assisting with Maintenance and Arrears Maintenance calculations, drawing
up Cohabitation Agreements and finalising Section 22 Applications.


WHAT DO I DO NEXT?

To continue, simply complete the Client Registration Form from the email that
contained this brochure, sign it, scan it and email it to
info@familydivorcemediators.co.za

 * Kindly do not make any payment prior to receipt of an invoice
 * Should you have any questions, contact us on the details below




WHAT ARE THE COSTS INVOLVED?

Take a look at the Services and Costs section on our website:



Costs and Services

 * admin@familydivorcemediators.co.za
 * 068 012 8797

Family Divorce Mediators

If you have any questions, please get in touch with our friendly customer
services team by calling them on 87 551 7012 or emailing team@bark.com

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