Why do I need an attorney to get a divorce?

Written by Talita Erasmus – a practising attorney at Alan José Incorporated.

Prior to August 2010 only High Courts could adjudicate and grant divorces.  However, since August 2010, Regional Courts have been granted the jurisdiction to adjudicate divorces too. This was to ease the burden on the High Courts and to prevent divorces being delayed due to overfull court rolls.

So, since divorces are now much more accessible to members of the public and a divorce can be done by any party who is willing to deal with the admin and hassle that goes with it – why do you still need an attorney to get divorced?  This article will deal with addressing this question.

There are mainly two approaches to a divorce:  A divorce can be either contested or uncontested.  The former means that the parties are arguing about the division of assets and/or care, contact of children and maintenance and/or the payment of pension interests to name but a few.  The latter means that the parties are (more or less) in agreement with all the issues in the divorce and are able to reach an amicable solution to their divorce.

Whether a divorce is contested or uncontested:

  1. You need to know when you are entitled to get divorced

You are entitled to get divorced if:  Your spouse has a mental illness, continuously unconscious, there is an irretrievable breakdown of your marriage and there is no chance of restoring a normal marriage relationship.  An irretrievable breakdown of a marriage can be for various reasons. Please note that this list is not an exhaustive list and ideally you would need to consult with an attorney to determine if you are entitled to get a divorce.

  1. You need to understand your rights

It is important to understand your rights when you get divorced.  Your rights would depend on your particular marriage regime and there are a few different marital regimes.  When you obtain advice from a qualified and experienced attorney, your rights will be explained to you during your first consultation.  Your attorney will explain what you, by law, are entitled to claim from your spouse by virtue of your marriage.

  1. You need to understand the legal consequences of a divorce

As with everything in life, getting divorced also comes with consequences.  It is crucially important to get professional advice so to ensure that you understand the consequences of getting divorced.  For every right you have, there is a responsibility. To ensure you are properly prepared for the consequences of a divorce, you need to have professional advice as to what they are.

  1. Consequences of not getting legal advice from an attorney

You really want to avoid the situation where, months or years after your divorce, you find out that you could have claimed more than what you received at the conclusion of the divorce.  The reason, therefore, is because most of the time you can’t go back and “fix” the error and even if you can, it is very expensive.

You also do not want to end up having to go (back) to court to amend your settlement agreement to make provision for errors, like not describing a pension interest properly or not defining your contact rights clearly.

Having to live with, or attempting to correct, these mistakes has high financial and emotional costs.

If there are children involved, you are advised to enter into a parenting plan which sets out (in more detail than the settlement agreement) details relating to your parental responsibilities and rights.  Obtaining professional advice on what these parental responsibilities and rights are will save you substantial time, costs and emotional stress in both the short and long term.

  1. You need to understand your rights and responsibilities afteryour divorce

When there are children involved, the issue of maintenance will most definitely come up.  The settlement agreement or better yet, the parenting plan, should make provision for the maintenance of the minor children after the divorce.  The parent who does not have primary care of his/her minor children should pay maintenance to the parent who has primary care of the children on behalf of those children.  Such maintenance towards the parent must be paid until the children reach the age of 18 years, at which stage they are no longer minors.  Please note that the fact that the child attains 18 years of age does not discharge the non-custodian parent’s responsibility to pay maintenance.  The only difference is that, after the child becomes a major, maintenance will be paid to the major child him/herself instead of towards his/her custodial parent.  Life happens and as a result, things change and you need to be armed with information so that you are prepared for same.

You also need to be advised of the implications your Last Will and Testament will have should it not be amended after your divorce.

To conclude, I hope you understand why it is important to seek the advice of an attorney when considering divorcing your spouse, or when the both of you have decided that it is better to end your marriage.

As the age old saying goes, forewarned is forearmed.


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