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DIY divorce

Johannesburg - Traditionally, January is divorce month.

Those long weeks of not-so-special togetherness during the holidays finally provide the last straw for many fractious couples.

With the recession adding to household stress, divorce lawyers may be hoping for a bumper month this year.

However, many South Africans may choose to go the do-it-yourself route.

A number of firms are offering quickie online divorces packages, with prices ranging from R495 to R1 500.

Given that an uncontested divorce (where both parties agree about the division of their assets and all arrangements regarding children) can cost you some R4 000 in legal costs, and a contested divorce anything from R10 000 to R500 000 - if the court action drags on for weeks - that may seem like a bargain.

Divorce 101

In South Africa, civil marriages and marriages according to the African customs can only be dissolved by the courts (Muslim and Hindi marriages are governed by the rituals of those religions).

Generally, divorces are granted by the High Court or a Divorce Court, which is part of the Magistrate's Court.

In both the High Court and the Divorce court, you can have legal representation, but particularly in the Divorce court, many people represent themselves.

One of the parties needs to draw up a summons for the court, which informs the other of the divorce and his or her right to defend the divorce.

Attached to the summons must be a document (Particulars of Claim) that explains the reasons for the proposed divorce. You can only get a divorce if you show the court that there has been an "irretrievable breakdown" of the marriage (including that one party left the other) or that one of the spouses is mentally ill or in a coma.

The summons is then issued (stamped) by the Registrar of the court. The other spouse has ten days to send the court (or the attorney who issued the summons) a notice that he or she will defend the divorce. If it doesn't happen, the case can be added to the unopposed divorce roll and a court date will be set for the divorce.

The divorcing parties can then try to draw up a settlement agreement, stating:

  • Who will get custody of the children.
  • How often the other parent can see the children.
  • All issues regarding maintenance.
  • How the couple's assets will be divided up.

When the divorce goes through and the parties signed a settlement agreement, the agreement becomes a divorce order, and if one of the parties doesn't adhere to it, they are breaking the law.

Usually, attorneys are called in to draw up the agreement.

How does a DIY divorce work?

Many legal firms now offer couples who agree on the main issues an online service to draw up an agreement that will be valid in court.

All the details of the couple's arrangements are completed online and an agreement is automatically generated.

You do not get legal representation in court, but some of the online services do offer access to an attorney "at a minimum fee". Others offer "live online chats" with a legal advisor. Included in the price is usually a step-by-step guide to divorcing.

The main advantage is cost - you don't have to meet with attorney, who can charge from R800 to R2 000 an hour. You could also save time. Some of the sites promise that completing their forms will only take ten minutes, and the agreement will be ready for use within thirty minutes.

Is it for you?

Many in the legal fraternity warn against it if there are children involved or any assets - particularly if there are any held in joint ownership. They contend that a legal expert needs to explain all the implications of your agreement.

For example, there may be a number of issues if property ownership is transferred - including problems surrounding capital gains and donations tax. There may also be issues over pensions and maintenance, which could create huge problems in the long run, and which a simplistic agreement won't be able to address.

Having a legal advisor acts on your behalf and requests information from your spouse, may also reveal enlightening details of your spouse's financial circumstances. You will also get advice on how much a fair settlement would be. The more you can agree to beforehand, the less time you need to spend in an attorney's office.

I will always advise someone to see an attorney to get the proper advice, says Elaine Austin of De Broglio Inc. Attorneys in Parkwood.

"The simple reason for it is that a lot of people draft a settlement agreement between themselves and then have to sit with the consequences of the settlement agreement because they didn't get proper advice as to what the legal position is regarding what they agreed upon."

If there is the least bit of complication, asset division or children are involved in your situation, and you are still on speaking terms, there are other ways to keep it cheap.

"If the parties are not openly hostile and want to keep costs down, the most effective way of getting a divorce is for them to sit down and agree on all possible issues in dispute," said Roy Bregman of Bregmans Attorneys in Johannesburg.

They would then approach one attorney who would help them put together an agreement of settlement recording what they have agreed.

The more you can agree to before you go to an attorney, the more money you will save.

If the attorney is the husband's or wife's it is a good idea for the other party to ask an independent attorney to go through the agreement before he or she signs, Bregman said.

Unfortunately, it is often the case that an attorney will say that he or she represents both parties, but in fact only looks after one of the spouse's interests, adds Austin.

"This will have serious consequences for the other party and will cost them thousands of rands, and probably won't be possible to fix at all."

An uncontested divorce, where both parties agree on all the issues before going to an attorney, should be finalised within a month after a summons was issued.

Most attorneys have a fixed fee that they charge for an uncontested divorce, while they charge an hourly rate for contested divorces, said Austin.

When the parties can't agree

But what if you don't agree on how to split the assets and issues relating to children?

Before going to an attorney, consider going through mediation.

Divorce mediators are cheaper than attorneys and can also be easier when children are involved.

In terms of a recent High Court judgment, attorneys are obliged to encourage their clients to attempt mediation (to resolve issues quickly and relatively inexpensively) rather than to embark on contested, long-winded and very costly litigation, said Bregman.

Mediation is an excellent option if parents are mature and responsible and are willing to allow a third party to assist them in resolving issues in dispute - such as where the children will stay, how often the non-custodial parent will have contact with the kids, what maintenance to pay for them and how to share their assets fairly, said Bregman.

Mediators usually have a background in counseling or the law and are accredited by an organisation like South African Association of Mediators in Family Matters.

After you completed an agreement with a mediator, attorneys representing each spouse should review it before you sign it.

But remember - there is no such thing as an easy divorce, warned Austin.

- Fin24.com

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