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How does a divorce work?

Getting divorced usually involves more than merely ‘untying the knot’. It requires considerable expertise along with an understanding of each divorcee’s unique situation.

The stress and trauma normally associated with divorce matters often cause people to act irrationally and impulsively, regardless of whether it is contested or uncontested.

It is therefore crucial for anyone contemplating a divorce to consider obtaining professional guidance before making some of the most critical decisions with irreversible long-term consequences.

It could mean the difference between a lifetime of serenity and contentment or one of bitterness and regret. Once the Court has granted the order, there is no ‘undo button’ to reverse possible damages. We will assist you in making the right choices with regard to your children as well as the financial implications of your divorce.

Even with divorce becoming increasingly more commonplace, a great deal of uncertainty regarding the divorce process stems from the lack of knowledge on how to divorce, since most divorcees only get divorced once. In this event, the last thing he or she needs is assistance from someone who lacks experience, knowledge and understanding of the divorce procedures and what divorcees are going through. Specialist divorce lawyers are experienced in the divorce process and are also completely familiar with family law, the Divorce Act and procedures applicable in the High Court and Regional Courts.

The steps in the Divorce process may be set out as follows:

  1. The decision to divorce is taken. In South Africa we have what is called “no fault” divorce. In effect this means that is one party does not want to be married anymore a court will grant the divorce. You don’t have to prove that someone is at fault for the failure of the marriage.
  2. If the divorce is unopposed, the parties consult with an attorney who will assist them in drawing up a settlement. Summons is then issued. The Defendant Party has to respond within 10 court days. Because a settlement has been reached, no such response will be noted and once the 10 days have lapsed, the matter may be enrolled. On the court day the Plaintiff appears in court and the divorce order is granted, incorporating the settlement.
  3. If the divorce is opposed the Defendant or his / her lawyer will enter a Notice to Defend the actions within the 10 court days allowed, and then plead to the allegations in the summons. Thereafter follows what is usually a lengthy exchange of letters, process documents and discussions between the parties and their respective legal representatives. This process may take years, and may be very costly. Should the parties manage to settle their disputes an agreement will be drafted and the process described above will follow. If no settlement is reached then the matter will go to trial, where evidence will be heard and a Magistrate or Judge will rule on the matter.

If the divorce is unopposed, why consult an attorney?

It is only natural to think of avoiding legal costs when suddenly faced with the unexpected and multiplied living expenses when one partner leaves the matrimonial home. Given the circumstances, it may be tempting to consider a classified ad promising a ‘cheap’ or ‘instant’ divorce or to download a DIY divorce-kit from the internet to obtain divorce papers. Chances are that it will probably only make matters worse.

Divorce cases have many variables while the parties and circumstances are hardly ever the same. Even in uncontested divorces, the complexity of legal issues requires a great deal of objectivity, knowledge and experience, as when negotiating the terms of a settlement agreement.

Basic issues between the parties may revolve around the children, for example primary care and residence of the child(ren), contact with the non-residential parent, guardianship, maintenance contributions for the children. With respect to the patrimonial consequence of the divorce parties may need guidance on how to divide their joint estate, or how to calculate accrual or if spousal maintenance should be paid, and how same would be calculated.

All of the above can be quite simple to settle for an experienced divorce lawyer, but the process could also potentially be delayed indefinitely due to misconceptions, lack of understanding of the law or even worse, parties entering into an agreement without obtaining legal advice prior to putting pen to paper.

Costs: A High Court divorce can be rather costly, but could end up costing ten-fold more when trying to rectify mistakes afterwards. By doing it correctly from the outset, it will save the whole family the further trauma and expense of trying to remedy blunders later.

The option of getting divorced in the Regional Court, especially where the parties have settled, or the aspects in dispute are few and not very intricate, should always be considered as the processes are less costly than in the High Court.

If all options are exhausted, discussing your unique divorce circumstances with an expert divorce attorney would not only simplify the divorce procedure but could also provide a solid foundation for a new beginning. 

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Application for Maintenance Order (link)

This informative government website provides information on a wide range of maintenance related issues including the steps to follow, cost, application forms and contact details for obtaining a maintenance order or to have an existing order amended. 

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Office of the Family Advocate (link)

The Office of the Family Advocate is involved in the evaluation and recommendation to the relevant Court upon written request by a party in a divorce action or application related to disputes over primary care or contact or any aspect of parental rights of children.

Many divorced parents or unmarried parents face the scourge of parental alienation perpetrated by the other parent. Parental alienation involves the systematic brainwashing, poisoning and manipulation of children with the sole purpose of destroying a loving and warm relationship they once shared with a parent.  As everyone knows, divorces can often be very acrimonious. Add children to the mix, and the animosity heightens even more, as both parents strive to do what they feel is in the best interests of the children. At times these efforts evolve into accusations that the other parent is “bad” causing the child to side with one parent over his/her dislike for the other.

This world is rife with parents using their children as pawns in the dirty game of divorce or where children are born out of wedlock. We have all heard of the old saying “no maintenance no kids” or “you left me so you won’t see your kids”. Parents don’t realize the damage they are doing in using their children as a means to get back at the other parent.

So often you hear about a mother complaining that a father sexually abused a child, with no evidence to substantiate the claim, simply in an attempt to isolate the father from having a relationship with the child or a mother obtaining a restraining order against a father simply to restrain the father from having a relationship with a child. It is so prevalent that legal practitioners even have a term for this: they call it SAID – Sexual Allegations in Divorce. Although it seems to be mostly women that play this deadly game, there are also fathers who use their children as pawns against the mother. Unfortunately in battles of this sort attorneys are sometimes also to blame and fuel the battles on behalf of a client losing sight of what the best interest of a child really means. Depriving the other parent of a relationship with his/her children is possibly one of the most devious methods to ruin a solid society.

Parental Alienation Syndrome” (PAS), is a term first used by the late child psychiatrist Richard A. Gardner in 1985. Dr. Gardner studied the behaviour of parents involved in child custody disputes. He noted that sometimes the children align themselves with one parent. While this is natural to a degree, Dr. Gardner noticed that in some cases it could be extreme to the point it borders on a physiological disorder. He described the so-called disorder or syndrome as follows:

“Its primary manifestation is the child’s campaign of denigration against the parent, a campaign that has no justification. The disorder results from the combination of [either deliberate or unconscious] indoctrination by the alienating parent and the child’s own contributions to the vilification of the alienated parent”.

The American Psychiatric Association has adding PAS to the new edition of the Diagnostic and Statistical Manual of Mental Disorders, that was published in May 2013. William Bernet, a professor of psychiatry at the Vanderbilt University School of Medicine and an advocate for its inclusion in the Diagnostic and Statistical Manual of Mental Disorders, describes it as “a mental condition in which a child, usually one whose parents are engaged in a high conflict divorce, allies himself or herself strongly with one parent, and rejects a relationship with the other parent, without legitimate justification.”

The form of PAS most experienced is that of negative words by one parent about the other, leading the child’s thoughts and attitudes in the same direction. The alienating parent might also cause the child, through manipulation and access blocking, to unjustifiably fear and/or hate the target parent. The parent with primary residence may engage in direct and indirect methods designed to alienate the child from his or her non-residential parent. As a result the child becomes preoccupied with unjustified criticism and hatred of the non-residential parent. This sometimes lead to brainwashing which result in conscious acts of programming the child against the other parent”. Examples include accusing the father of being an “adulterer” and “deserter.” The father is unjustifiably accused of providing too little maintenance, sometimes to the point that the mother misleads the children to believe that terrible things will happen to them. When a father leaves the home, the mother may make statements such as, “your father has abandoned us,” to teach the child that the rejection extends not only to the mother but to the c. children as well. Minor negative attributes on the father’s side are exaggerated greatly. For example, the father who occasionally has a drink after dinner is described as an alcoholic.

Section 35 of the South African children’s act criminalizes the refusal to allow someone access or who holds parental responsibilities and rights in terms of a court order or a parental responsibilities and rights agreements that has taken effect, to exercise such access or parental responsibilities and rights. It also criminalizes prevention of the exercise of such access or parental responsibilities and rights. Punishment for any of these offences is a fine or imprisonment for up to one year. The section further obliges a person who co-holds parental rights and responsibilities with another person in terms of an agreement or court order to notify the other party in writing immediately of any change in his/her residential address. Failure to notify such party will result in an offence. 

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The first few days after you get arrested can be a very confusing time. You’re dealing with the SAPS, lawyers, magistrates or judges, and maybe even staff at a jail. You may not understand what’s happening, or why you’re going to certain places. This booklet will help you with some of the more common questions.

Call your local Legal Aid courtworker at:

  • 012 420 4100 / 0800 110 110

You can ask your courtworker or probation officer any question, any time. They can help you find the information you need.

Or you may wish to call your own lawyer, who will deal just with you and ensure that your rights are not infringed upon. Call

Potgieter Louw Attorneys at:

012 991 6151 / 083 280 3713

Go with the police: do not fight them or run away. Tell the SAPS or the Metro Police that you want to call a lawyer. They have to help you call a lawyer who can tell you if you should talk to the police and can help you get released from custody. You have a right to talk to a lawyer, and you can talk to the lawyer in private.

You do not have to talk to the police at all, except to tell them your name and address. You do not have to answer their questions or give any statements. Anything you say can be used in court against you, so it’s important to talk to a lawyer before you talk to the police. Never lie to the police. However, depending on the situation, it might be best for you to not talk to the police about what happened. You have a right to remain silent, and you do not have to answer questions posed to you. Your lawyer can tell you what to do. If you need an interpreter, tell the police right away. Make sure your lawyer knows, too.

When can the police arrest me?

The police can arrest you if they have a legal form called an “arrest warrant”. If a judge or magistrate has signed this form, the police can arrest you by showing it to you or telling you about it. They need to tell you why they are arresting you and make sure that you understand them. They can touch you, but not hurt you.

The police can arrest you without a warrant if they have reason to believe that you have committed a serious crime, or if you commit an offence in their presence.

If it is a less serious crime, they can arrest you without a warrant if they see you commit the crime and they need to:

  • find out who you are,
  • stop you from committing the crime,
  • keep you from destroying evidence or
  • make sure you will go to court.

What if I am younger than 18?

The rules are a bit different if you are younger than 18. A law called the Child Justice Act applies to people under the age of 18 who commit crimes. It is a good idea to call your parents and have them come to the Police Station. You can call both a lawyer and your parents: you do not have to choose between them. If the lawyer tells you that you should talk to the police, your parents can and should be there while you talk to them. If you don’t want to call your parents, the SAPS or the Social Worker on duty at the station can call them for you.

How do I get an interpreter?

Tell the police right away that you speak another language and need an interpreter. You should also tell your courtworker and your lawyer. The courts will hire someone who speaks your language to interpret for you in court.

Can the police keep me in custody?

Yes, in certain situations. In many situations the police will charge you and then release you on a “warning to appear”, or they may set an amount of bail which should be paid at the Police Station, which may have certain conditions for you to follow. If the police do not agree to release you, they have to arrange for a court appearance within 48 hours of you arrest, unless that falls on a weekend or holiday, in which case the appearance will be on the next court day.

 The police released me, but they said I still have to go to court. What does that mean?

In many situations the police will charge you and then release you on a “warning” or on “bail”, which may have certain conditions for you to follow. If you do not follow those conditions the police can arrest you again. If the police give you papers that say you have to go to court at a certain time, you have to go. If you don’t go to court at that time, you can be charged with a crime called “failing to appear”, and you can be arrested and put in jail until your trial.

The police are not going to release me. What happens next?

If the police are not prepared to release you (usually because of the seriousness of the alleged offence) there are other ways in which your Attorney may procure your release. Your attorney may arrange with a prosecutor for you to be freed after paying an amount of bail. Again conditions may be set which you must adhere to. If that also fails the SAPS must take you before a magistrate within 48 hours or on the next available court day.

The magistrate will hear from the police or the prosecutor and your lawyer and decide whether you can be released and whether there will be conditions on your release. You may apply for bail at court and the magistrate may hear evidence about whether releasing you may not be a good idea. For example, if you have hurt someone, and that person may not be safe if you are released in the next few days, the magistrate will consider that. There will be a lawyer who will assist you in court for this hearing. Your lawyer or courtworker will give you advice about what to do in court.

If the magistrate agrees to release you, there may be “conditions” set. This means that you have to do certain things to be allowed out of jail. For example, you may have to agree to stay away from a certain person, you may have to live in a certain place or you may have to pay money or bail to the court. Listen carefully when the magistrate discusses these conditions. You may request the conditions from court in writing. If you don’t understand, ask your lawyer, the magistrate or the Clerk of the Court.

The magistrate did not release me.

The magistrate may say that you have to stay in custody. If that happens, the police will usually bring you to one of the correctional centers – usually the one closest to the court. There are different facilities for men, women and under 18’s. This is not the end of the line, your lawyer may appeal the decision by the magistrate.

The social worker came to my house when I was arrested, and my kids were put in care. What do I do?

Your children are in a safe place. Call Legal Aid or your lawyer right away and tell them what happened. They will be able to help you. Remember that your kids’ safety is the top priority. They may be able to stay with a family member if your house is not a safe place for them right now. The social worker may decide to place your children right away with another parent or relative. If they do not, you will soon receive papers letting you know about a court application to confirm the apprehension of your children. You should contact legal aid or you lawyer right away and ask for assistance with the court application and with the ongoing child protection matters.

I have a medical condition. Who needs to know about it?

Tell the SAPS what you need. If you need pills or medical supplies, they can help you to get what you need from your house.

Your court worker, lawyer and probation officer also need to know about your medical condition; you should tell them at the first opportunity you get. If your medical condition is relevant to the things you’ve been charged with, be sure to tell your lawyer.

Things to think about right away.

If you have to go to jail, make sure you tell a staff member about your medical condition as soon as you are admitted. He or she can arrange for you to get any urgent treatment, and can give you advice about the best way to take care of yourself. If your situation isn’t urgent and you will not be in jail long, treatment will usually be scheduled for after your release.

What do I tell my boss?

If you can’t get to work because you are in jail, make sure your boss knows you won’t be at work. Tell him or her what happened, and ask if you can talk about it in a few days when you know more about what is going on.

I’m under 18. Do I have to tell my school what happened?

No, but it’s a good idea to have your parents let the school know that you will be away for a few days. If the magistrate sends you to one of the facilities for young people, you can keep up with your schoolwork with the teacher there.

How do I apply for Legal Aid?

Legal Aid provides legal advice and representation to people who can’t afford to pay for the whole cost of a lawyer. It pays for criminal cases and family law cases for people who meet the financial requirements. It usually does not pay for most other types of legal services. To apply for legal aid, contact your local courtworker. The phone numbers are on the first page of this booklet. He or she can take your application and give you information about the justice system. You should have legal representation as early as possible, whether it be legal aid or your own attorney.

Domestic violence is often thought to only include physical violence, but the acts, behaviour and consequences that make up domestic violence vary in nature and frequency. Domestic Violence is regulated by the Domestic Violence Act. This Act applies to violence that takes place in a domestic relationship. What is a domestic relationship?

You can have a domestic relationship with – someone you are or were married to; your parents or guardian; any family member(s); including your own child(ren); anyone you have lived with, whether you were married to that person or not; your life partner of the same sex; someone you went out with, even for a short time, or had sex with; or someone with whom you share a child. What is domestic violence?

The following can be regarded as domestic violence:

SEXUAL ABUSE: Whether you are married to the other person or not.

PHYSICAL ABUSE OR ASSAULT: For example, slapping, biting, kicking, and threats of physical violence.

DAMAGE TO PROPERTY: O r anything you value.

STALKING: When the other person follows or approaches you or your children repeatedly.

ECONOMIC ABUSE: When the other person keeps money from you to which you are legally entitled in an unreasonable manner by refusing to pay or share the rent or mortgage bond for the home you share; or disposing of any property (household goods) in which you have interest, without your permission.

EMOTIONAL ABUSE: That is, degrading or humiliating behaviour, including repeated insults, belittling, cursing and threats

ANY OTHER CONTROLLING OR ABUSIVE BEHAVIOR: Conduct which poses a threat to your safety, health or well-being. What are my options if i am being abused?

You have the right to:

* Apply for a protection order at the nearest police station or magistrate’s court; or

* Lay a criminal charge at the police station and apply for a protection order. What is a protection order?

It is an order issued by a court at your request, ordering a person with whom you have or had a domestic relationship, or any other person assisting such person, to stop the abuse. An interim protection order can also be issued at any time of the day or night for your protection. Where do i apply for an order?

You will need to go to your nearest Family Violence Court. The Pretoria Court is situated at the Rondalia Building in Visagie Street, just across from the City Hall

How does it work?

You will be required to make an affidavit setting out the circumstances you are complaining about. A Magistrate will then review your application and may either grant an Interim Order immediately or direct the Respondent to appear and show cause why an order should not be granted. If an Interim Order is granted the SAPS will serve the Order free of charge on the Respondent, or you may choose to have the Order served by the applicable Sheriff and pay the Sheriff’s fee. Once the Order is served it serves to control the conduct of the Respondent until it it withdrawn or set aside. An Interim Order will have a Return Date, at which time both the Applicant and the Respondent have to return to the Court for an investigation into the allegations.

Who can apply for a protection order?

Any victim of domestic violence can apply for an order. Children, and if they are too young, a parent or guardian, or any person acting on behalf of someone who is responsible for them, but with their permission.

Commitment of the SAPS:

The SAPS’s responsibility is as follows:

*At the scene of the incident the SAPS must locate the complainant and take reasonable steps to protect the complainant from any further danger.

* Create an environment that is conducive to communicate.

* Obtain statements from the complainant and witness (es).

* If there is reason to believe that an act of violence has been committed, the respondent must be arrested immediately without a warrant.

* Search the premises and seize (for safekeeping) any firearms and/or dangerous weapons in the possession of the person who has either threatened to kill or injure another person

* The SAPS will also do this if they are satisfied that the offender’s mental state, inclination towards violence and/or dependence on alcohol or drugs could influence his/her behaviour and pose a threat to anyone What other assistance will the SAPS provide?

* Medical attention;

* Shelter

* Victim counselling.

* Ensure that a medical officer collects and records any medical evidence in support of a criminal charge.

* Go with you to your home when you need to collect personal belongings, if this is provided for in a protection order that has been issued.

Should a police officer fail to carry out this commitment, you can report the matter to the station commissioner at the relevant police station. The complaint will be noted in a complaints register, stating the name of the member concerned, the date on which the complaint is lodged, and the details of the complaint.

The station commissioner will take disciplinary steps against the member involved. The Police Service will also refer the complaint to the Independent Complaints Directorate (ICD) for their recommendations. If you are not satisfied with the way in which a station commissioner is dealing with your complaint, you may personally report the matter to the ICD. What can i do if an abuser disobeys a protection order?

Phone the South African Police Service. Thereafter a statement will be taken from you. Provide the police with the warrant of arrest you received together with the protection order (if you have lost it, apply at the court for another one). If you are in immediate danger the abuser will be arrested, otherwise the abuser will be given a notice to appear in court the next day. General Hints and Tips:

In the case of domestic violence have a crisis plan ready: Identify places where you can use a telephone quickly and easily. Always carry a list of emergency numbers with you. Make sure that the people you usually visit have a copy of the protection order and/or warrant of arrest. Put some money in a safe place so that you can take a taxi or bus in case of an emergency. Have an extra set of keys for the house or car. If possible, have a set of clothes for yourself (and your children) packed in a bag, and keep it in a safe place (for example, at a neighbour’s house). If you are planning to leave, leave when your partner is not around, and take your children with you. Make sure that you are in possession of essential documents like IDs, your medical aid card, and your savings/credit card.

Contact a Family Lawyer to evaluate your situation and provide advice and assistance.

Recognize domestic violence

Domestic violence — also called domestic abuse, battering or intimate partner violence — occurs between people in an intimate relationship. Domestic violence can take many forms, including emotional, sexual and physical abuse and threats of abuse. Men are sometimes abused by partners, but domestic violence is most often directed toward women. Domestic violence can happen in heterosexual or same sex relationships.

It might not be easy to identify domestic violence at first. While some relationships are clearly abusive from the outset, abuse often starts subtly and gets worse over time. You might be experiencing domestic violence if you’re in a relationship with someone who:

  • Calls you names, insults you or puts you down
  • Prevents you from going to work or school
  • Stops you from seeing family members or friends
  • Tries to control how you spend money, where you go, what medicines you take or what you wear
  • Acts jealous or possessive or constantly accuses you of being unfaithful
  • Gets angry when drinking alcohol or using drugs
  • Threatens you with violence or a weapon
  • Hits, kicks, shoves, slaps, chokes or otherwise hurts you, your children or your pets
  • Forces you to have sex or engage in sexual acts against your will
  • Blames you for his or her violent behavior or tells you that you deserve it
  • Portrays the violence as mutual and consensual

If you’re lesbian, bisexual or transgender, you might also be experiencing domestic violence if you’re in a relationship with someone who:

  • Threatens to tell friends, family, colleagues or community members your sexual orientation or gender identity
  • Tells you that authorities won’t help a lesbian, bisexual or transgender person
  • Tells you that leaving the relationship means you’re admitting that lesbian, bisexual or transgender relationships are deviant
  • Says women can’t be violent
  • Justifies abuse by telling you that you’re not “really” lesbian, bisexual or transgender

Pregnancy, Children and Domestic Violence

Sometimes domestic violence begins — or increases — during pregnancy. During this perilous time, your health and the baby’s health are at risk. The danger continues after the baby is born. Even if your child isn’t abused, simply witnessing domestic violence can be harmful. Children who grow up in abusive homes are more likely to be abused and have behavioral problems than are other children. As adults, they’re more likely to become abusers or think abuse is a normal part of a relationship. You might worry that seeking help will further endanger you and your child or that it might break up your family, but it’s the best way to protect your child — and yourself. Break the cycle

If you’re in an abusive situation, you might recognize this pattern:

  • Your abuser threatens violence.
  • Your abuser strikes.
  • Your abuser apologizes, promises to change and offers gifts.
  • The cycle repeats itself.

Typically the violence becomes more frequent and severe over time.

The longer you stay in an abusive relationship, the greater the toll on your self-esteem. You might become depressed and anxious. You might begin to doubt your ability to take care of yourself or wonder if the abuse is your fault. You might feel helpless or paralyzed. If you’re an older woman who has health problems, you might feel dependent upon an abusive partner. If you’re in a same sex relationship, you might be less likely to seek help after an assault if you don’t want to disclose your sexual orientation. If you’ve been sexually assaulted by another woman, you might also fear that you won’t be believed. Still, the only way to break the cycle of domestic violence is to take action — and the sooner the better. Start by telling someone about the abuse, whether it’s a friend, loved one, health care provider or other close contact. At first, you might find it hard to talk about the abuse. But you’ll also likely feel relief and receive much-needed support. 

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