In April 2019 the world witnessed the celebrity divorce between Amazon founder, Jeff Bezos, and his wife, Mackenzie Bezos. The divorce is officially the ‘
most expensive in history’ not because of the legal costs incurred but rather due to the sizeable and valuable asset base.
Jeff and Mackenzie Bezos were applauded for their amicable approach to their separation which resulted in an out of court settlement concluded within a few months.
In South Africa, a similar approach is available, where married couples who have agreed to part ways, opt to proceed with an uncontested divorce by entering into a settlement agreement. This article focuses on uncontested divorces and answers the frequently asked questions we receive from clients.
What does irretrievable breakdown of a marriage mean?
Contrary to popular belief, South Africa has a no-fault system which means that no legal consequences are attributed to the person responsible for the breakdown of the marriage.
In terms of the Divorce Act it is mandatory to provide a reason for the breakdown of your marriage. The most common ground for divorce is an
irretrievable breakdown of the marriage which includes the following examples
:
- The parties have not lived together as husband and wife for a continuous period of at least one year;
- A party to the marriage has committed adultery and the other party finds it impossible to continue living together as husband and wife;
- loss of love and affection for each other;
- substance abuse; and/or
- That the parties are too different and incompatible.
The difference between an uncontested and contested divorce?
Individuals have a choice as to how they wish to proceed with their divorce. The divorce may be an uncontested (unopposed) divorce or a contested (opposed) divorce.
An uncontested divorce is one where a married couple reaches agreement on all issues, which includes the division of their assets, liabilities, arrangements regarding minor children and the payment of maintenance.
In this instance, spouses have settled all issues through the assistance of their legal representatives, or have attended mediation, or reached agreement on various aspects before seeking formal legal advice. An uncontested divorce is usually finalised between one to three months, depending on the complexity of issues.
A contested divorce is one where individuals cannot arrive at an agreement on one or more issues. Contested divorces are acrimonious and it’s usually left up to the Court to decide the outcome of issues in dispute. A contested divorce could take up to three years to finalise. The amount of money spent on litigating is considerable.
Advantages of the uncontested route
An amicable approach by individuals is encouraged for various reasons, which reasons include:
- You and your spouse arrive at your own agreements, a Court is not dictating the outcome;
- The process encourages communication and problem solving;
- It is considerably less expensive compared to litigating;
- Matters are resolved quickly;
- It limits conflict between spouses as the process is amicable, conciliatory and tends to decrease hostility and reduce future conflict;
- The impact of ongoing litigation on the emotional wellbeing of children is negated.
The process for uncontested divorces
Our family law specialists use their wealth of knowledge and experience to assist individuals reach settlement. Ashley Curran, Director of Curran Attorneys, is an accredited mediator who has the necessary skill set to assist with resolving disputes amicably and thereafter drafting the Consent Paper and Parenting Plan which records the important terms of the agreement.
The agreements required in an uncontested divorce are as follows:
- Consent Paper (settlement agreement), this is the settlement agreement, which deals with all financial aspects ranging from the division of assets (i.e. houses, pension funds, furniture etc), liability of debts, maintenance for children and maintenance for a spouse, if applicable; and
- Parenting Plan, if there are children under the age of 18. The Parenting Plan will detail the rights and responsibilities of both parents by setting out joint decisions required, where the children’s primary residence will be, the contact times when the other parent will see the children, holiday arrangements etc.
Once the Consent Paper and Parenting Plan is signed, Curran Attorneys will prepare the summons for an uncontested divorce. The summons is allocated a case number and sent to the relevant Sheriff’s Office for service upon the Defendant. The divorce process is unique in the sense that the summons must be personally served upon the Defendant. If minor children are involved, the Consent Paper and Parenting Plan will be endorsed by the Office of the Family Advocate.
Once all those steps are complete, our team of attorneys will arrange the court date for the hearing and accompany you to Court for granting of the final decree of divorce.
Why use Curran Attorneys for your uncontested divorce?
Although it may be tempting for you to approach the Court directly and handle your own uncontested divorce, it is strongly recommended that you consult with one of our family law specialists first.
Incorrect legal advice regarding the division of assets may lead to dire tax implications. For example, if the transfer of a property from one spouse to another is incorrectly worded in the Court Order, the transfer will not enjoy the benefit of being exempt from transfer duty. Another example is the unenforceability of orders pertaining to pension/provident funds and retirement annuities in instances when the wording does not comply with the strict requirements of the Pension Funds Act.
Every step of the way, Curran Attorneys provides the necessary legal advice to ensure full compliance with legislation as well as ensuring you get the best possible outcome. Our attorneys focus on achieving results for our clients in the most cost-effective manner.
Whether it’s assistance with mediating disputes, drafting divorce agreements or assisting with the process in Court, our team is available to assist. Contact Ashley Curran on (021) 671 9322 or
ashley@curranattorneys.co.za for assistance.
