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Online divorce: Beware of the pitfalls

Jul 07 2019 18:13
Compiled by Carin Smith

Opting for a so-called "online or DIY divorce" may look cheap, but could cost you dearly in the long run, cautions attorney Simon Dippenaar.

"We believe that divorce is a serious matter, however amicable, and deserves to be treated with the same respect and dignity as the institution it seeks to dissolve," says Dippenaar.

You would still need to sign the deed of settlement, make copies of all documents and go to court and issue your summons and annexures at the registrar of the court - and take the documents to the Sheriff of the Court in person to serve on the defendant, according to Dippenaar.

If you have children, you would also have to go to the family advocate, then go back to court to get a date for the hearing and then appear on that date.

"So, while it may be a DIY divorce, the only 'online' function is the provision of documents, for which you pay a fee. The online divorce lawyer won't tell you that your local magistrate's court will provide you with the necessary forms (for free) and give you guidance on how to process your own divorce without legal representation," says Dippenaar.

"We understand that cost is an issue. Dividing assets and setting up separate households is more costly than maintaining the family home, and inevitably everyone is worse off financially."

Advice and guidance 

According to Dippenaar, online or DIY divorce is only suitable for couples who have discussed and agreed the terms of the divorce.

"DIY divorce agencies emphasise this point. What they fail to say, however, is that there are many factors that the divorcing couple might not have considered or even be aware of," he explains.

"Certain issues, undisclosed or unresolved at the time of divorce, can come back to haunt the couple later in life. Unwinding a legal partnership – for that's what a marriage is, in the eyes of the law – requires competent legal advice."

Shared assets

If the divorcing couple rents their home, has no children and has no other property in common, they might get away with a DIY divorce, he says. But if there is a shared marital home, with a bond, there are complex issues such as the transfer of property to manage.

Another issue is whether there is an antenuptial agreement in place. Is the marriage in or out of community of property, and with or without accrual?

Maintenance and pensions

"Unless you're a lawyer, you won't know all your legal entitlements. You may be able to claim maintenance from your spouse, even if they are unemployed, because maintenance can kick in once they secure employment," explains Dippenaar.

"If you are married in community of property, you can claim 50% of your spouse's pension – even before they reach pensionable age, and of course that works both ways."

Court involved in custody

If there are children, there is a procedure that must be followed. Even if parents draw up a post-divorce parenting plan, a court must be involved when it comes to custody and access.

The parents may approach a family advocate for help with the parenting plan, but they only advise the court on what's best for the children – they do not issue a judgement or an order.

* Simon Dippenaar is an attorney at Simon Dippenaar Law.

simon dippenaar  |  divorce  |  money


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