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Free Guide to Hiring a Family Lawyer
Browse our 1 legal question about Divorce & Separation in South Africa and the lawyer answers, or ask your own questions for free.
In South Africa, the Dissolution of Marriages Act 70 of 1979 governs divorces and separations. As such, the law in Cape Town aligns with this national legislation. The law understands divorce as the end of a marriage that has broken down irretrievably, with no hope of restoring a normal marital relationship. There are two types of divorces in South Africa: contested divorce, which is a prolonged process, and uncontested divorce, a faster and cheaper option where both parties are in agreement.
A knowledgeable lawyer is essential in dealing with divorce and separation due to the legal complexity and high emotional stakes involved. When assets need to be distributed, child custody is in question or one party demands spousal support, disagreements can happen, potentially leading to a contested divorce. In such circumstances, an experienced lawyer can guide you throughout the process, offer advice while protecting your rights, and ensure your interests are well represented.
The governing law in Cape Town places a spotlight on the "best interests of the child" when settling custody disputes. Furthermore, South Africa follows the "equitable distribution" model for property division meaning that assets acquired in marriage are divided fairly, but not necessarily equally. Spousal support, although not automatic, is determined based on factors like the couple's standard of living during the marriage, length of the marriage, contribution to the marriage and the earning capacity of each party.
An uncontested divorce can take around 4 to 8 weeks. However, contested divorces can take much longer, potentially several months or even years.
No, once one party has decided to end the marriage and can prove to the court that the marriage has irretrievably broken down, the divorce will proceed.
Property division depends largely on the marital regime governing the marriage. South Africa recognizes three types of marital regimes: marriage in community of property, out of community of property with accrual, and out of community of property without accrual. The division of property is determined accordingly.
The 'best interests of the child' is the paramount consideration in South Africa. The court will assess the circumstances thoroughly before deciding on which parent gets custody or whether joint custody would be in the child's interests.
No, South Africa operates under a 'no-fault' principle. This means the court is not interested in the reason for the divorce. Therefore, infidelity has no bearing on the divorce process or the terms of the divorce decree.
The Family Advocate's Office can offer valuable guidance in matters concerning the welfare and best interest of minor children during a divorce. The Legal Aid Board South Africa offers free legal advice for those who cannot afford it. The Department of Justice and Constitutional Development also provides resources and services pertaining to divorces.
If you need assistance with a divorce or separation, the first step is to consult with a family law lawyer who specializes in divorce. You can do this by reaching out to the Cape Law Society or checking the South African Legal Practice Council directory. Compile a list of all your questions, financial documents, and relevant information about your marriage and present it to your lawyer during the first consultation.
