It has been said that after all, computers crash, people die and relationships fall apart. This aphorism holds true to many marriages– they result in failure and divorces which can prove very expensive. But does getting divorced have to be costly?

In this article, we will consider the legal framework and how people who get divorces can circumvent the process for the most economically sound outcome.

HOW DOES DIVORCE WORK

Marriage is a relationship that comes to be by operation of the law, consequently, only the Courts of laws can dissolve it through divorce and granting what is commonly known as a decree of divorce signifying the termination of the relationship.

To get the ball rolling, any spouse that is resolved to get divorced must approach a legal practitioner to assist them, or if they are clued up with the legal procedure, they may do so in their personal capacity.

The attorney will then invoke the civil procedure by instituting an action suing the other spouse for divorce and other relief. Traditionally, when the other spouse received the combined summons by from the Sheriff, they will have at least 10 days to indicate if they want to defend, commonly known as to “fight” the divorce claim or not. Part of this may include going to another attorney to render their service in defending the divorce action.

At this point, it is clear that both spouses may have engaged services of legal practitioners, and those services are actually what is expensive, they come at a fee. Is it always ideal to engage two different attorneys just to get divorced? A classical answer is that, it depends on a variety of factors.

In South Africa, the default marriage regime is that of community of property, even in practice, many practitioners are faced with divorces arising from such regime. According to this marital property system, all assets and liabilities, accrued before and during the marriage are merged together into one joint estate. The legal position is then that when spouses divorce, the joint estate is divided equally– the so called 50/50. If spouses are married in community of property, the equal division outcome is a legal right and entitlement– it is only in rare instances that there may be deviation. Therefore, defending a divorce action where the worst that will happen is that the joint estate is going to be divided equally nonetheless may prove to be a waste of money spent fighting or paying for legal services– there is really in not much magic that the lawyers can pull to tip the scales.

HOW CAN SPOUSES CIRCUMVENT THE PROCESS AND SAVE MONEY?

The first thing is for the spouses to talk about the end of their relationship. Practice has so far indicated that an element of surprise in divorce breeds contempt and frustration which often than not involve lawyers and unnecessarily complicate things, especially if both spouses appreciate that there is nothing much that can be done to sustain their marriage.

Once the talking is done, the spouses can almost agree on how they wish to divide their joint estate. That is, who is going to keep which house, car, who will reside with the children and who is going to pay for which debts.

Once the spouses have an idea about the dissolution of their marriage and division of their joint estate, they can both decide on which attorney to approach. The said attorney will advise and guide them. Another benefit for spouses approaching the same attorney is that such attorney can represent both of them, assist in drafting a marriage dissolution contract often called a deed of settlement as well as other legal process involved. The legal fees of the legal practitioner will be minimal as opposed to when two legal practitioners where on the record representing different sides– essential, it is as if you are paying for one attorney, instead of two for the same work, and both of you receive legal services.

CONCLUSION

When you think of getting divorced, speak to your spouse or your attorney, whomever you may start with first– but do talk and eliminate surprises as people react irrationally when surprised, and that may be costly.

If you are married in community of property and there are no exceptional circumstances that may warrant a deviation from the default 50/50 equal division of the joint estate, reconsider involving many attorneys. It may prove economically sound and effective that you and your spouse both consult the same attorney to assist you in legally dissolving your marriage.

The information contained in this written piece is not necessarily exhaustive, engage expert divorce attorneys for a more tailormade or personalized advised to best suit your circumstances and interests.

Reference List:

• The Divorce Act 70 of 1979, as amended.
• The Customary Marriages Act 120 of 1998, as amended.