Legal aspects – Starting the Divorce process:
- Before you begin on the legal process of divorce be sure that your marriage has broken down and that you have tried to reconstruct your relationship but that for either both or one of you divorce is the only way out. Having reached that decision, the legal action can begin. There are three ways to get a divorce:
Do it yourself divorce:
- Although this is less expensive, it is only possible if you have been married for a brief time, you don’t have children, you don’t have many assets, and you can talk to each other and reach agreement on the settlement.
- A publication is available at most bookstores called “Do it yourself divorce.” The person wishing to obtain a divorce would then have to comply with the procedures of the Court regarding the drafting of a summons and the completion of the relevant information for the family advocate.
- The summons would be issued by the Registrar of the supreme Court in accordance with the rules. The summons then must be served on the defendant by the deputy sheriff of the Court and the requisite number of days in terms of the Rule elapsed before the matter is enrolled by notice of set down in accordance with the rules and forms of the particular Court for hearing.
- It is recommended that the Plaintiff attends court and watches how the matters are conducted as certain basic information is required to be given to the court. The unrepresented matters are usually stood down by the Presiding Judge to the end of the Court Roll.
- You may decide that you can settle your differences over the children, your property and assets by using an independent person, a professionally trained mediator.
- A mediator will help you both to clarify the issues and to settle them amicably. Mediation will only be successful if both of you want to settle your disputes as possible, if you can communicate and are not too angry or hurt, and if you are willing to be open and honest with the mediator.
- It is advisable that you and your spouse have the written agreement drawn up by the mediator reviewed by your own independent lawyers before signing the agreement. To obtain the services of a mediator you may contact organizations such as the South African Association of Mediators in Family Matters, who will put you in touch with mediators.
To see an attorney:
- LegalAdmin attorneys will advise you of your rights. They will usually then sends a letter to your spouse requiring him/her to call in and discuss the matter either personally or represented by another attorney. An attempt will be made to come to an agreement or to reach a settlement prior to the institution of action.
- If a settlement cannot be reached, a summons will be issued which will be served on your spouse by the Deputy Sheriff. You may be able to settle the matter at this stage. If not, following numerous court proceedings, the matter will be set down for hearing before a judge who will then decide the matter for you.
- Divorce is painful and often our emotions get in the way of making sound decisions concerning the children and financial matters.
- You may feel guilty about leaving the marriage and feel you must pay heavily for causing the break-up. You may be thinking of agreeing to support your spouse for a longer period than necessary, or you may be tempted to give your spouse most of your property or give up any rights to share.
- Try to think of the long-term consequences of the decisions you take. You can’t buy away your guilt. Work on these feelings so that you can make appropriate and rational decisions.
- You may feel helpless and inadequate, overwhelmed by the complexity of the “legal” proceedings.
- You have always left ‘money matters’ in your spouse’s hands and will do so now. In divorce your economic interests are different and may be competitive. Therefore, it is important to take control of your own interests and become involved in the money matters.
- You may also agree to be compliant to please your spouse and avoid conflict, or to get your ex-spouse out of your life as soon as possible. You agree to go to the same attorney who may not be completely objective, or you may agree to settle too quickly without careful thoughts and in consultation with your own attorney.
- Your emotions are getting in the way and unless you become aware of this you may be unable to look after your interests or do what is best for your children.
- A trained counsellor will help you to deal with your emotions.
- LegalAdmin attorneys will resolve other issues and help you to get your legal divorce.