Divorce Lawyer Services

 

Pamela, A Certified Divorce Lawyer, Cape Town,
answers common questions about divorce

Divorce Lawyers Cape Town
Divorce (or the dissolution of marriage) is the termination of a marital union, the cancelling and/or reorganizing of the legal duties and responsibilities of marriage, thus dissolving the bonds of matrimony between a married couple under the rule of law of the particular country and/or state.
Before contacting Divorce Lawyers in Cape Town to assist you, take a look at the topics on the left. They may answer many of the questions you have.
A civil marriage needs to be dissolved by a court. A local Cape Town court will suffice. You are only entitled to a divorce if you can prove to a court that you and your spouse can no longer live together and there is no chance of resolving your differences. If one of the spouses is mentally ill or continuously unconscious, this is also a valid reason for a divorce. Proof of this can include evidence showing that:
  • The couple have not lived together for a while.
  • One partner cheated on the other.
  • One partner left the other
  • One partner abused the other.
  • The couple no longer love each other.
You can get a divorce if your partner has been institutionalised for mental illness for at least two years and doctors don’t think that they will ever recover.
If you want to ask the court to issue a divorce you need to prepare a summons dealing with:
  • Who will have custody of the children.
  • How the parent who does not have custody will have access to the children
  • Who will receive maintenance, how much it will the maintenance be and how it will be paid
  • How your property will be divided up.
  • If you and your partner can reach a settlement agreement before the summons is issued, this will make the process much quicker and easier. If you reach an agreement, you should write it down and sign it. This consent paper should then be attached to the divorce summons.
  • A hearing date will be set. At this hearing, the judge will ask questions to confirm the information in the summons. Once everything is settled, a divorce order will be granted.
  • If you use the Family Court instead of a High Court your divorce may go through more quickly and more cheaply.

Some of our services include:


  • Contested / Opposed Divorces
  • Uncontested / Unopposed Divorces
  • Divorce Mediation and Collaborative Divorce
  • General Family Law Matters
  • Parental Responsibilities and Rights
  • Custody (care and contact) of Children
  • Unmarried Fathers Rights and Access to Children
  • Domestic Violence Matters and Protection Orders
  • Care and Contact disputes concerning Children
  • Child and Spousal Maintenance Law
  • Ante-nuptial Contracts and Pre-nuptial agreements
  • Cohabitation Agreements
  • Universal Partnerships
  • Rule 43 Applications and Urgent Monetary Relief Applications
  • We understand just how traumatic this process is for you and your loved ones.
  • As a Divorce attorney who is passionate about family law, I strive to help my clients, who are considering divorce or separation, to the best of my ability.

We offer negotiation, mediation, and collaborative law for clients who wish to avoid litigation through the courts, to settle outside of court, or seek more amicable resolutions. Yet, when our clients need aggressive representation, we also litigate effectively, protecting their rights
  • Civil marriages are dissolved according to the rules in the Divorce Act.
  • Marriages in terms of African Customary Law are dissolved according to the civil law but some of the consequences are determined by custom and tradition.
  • Muslim and Hindu marriages are dissolved in terms of the rites and rituals of the religion.
  • Custody of the children
  • Access to the children
  • Maintenance
  • Dividing up property

Before the court can allow the divorce to take place, the parents or court will have to decide who takes care of the children. This decision should be in the best interest of the children, and can be investigated by the Family Advocate.
If the divorce is taking a long time, an interim custody order can be issued setting out who will look after the children while the divorce is being finalised.
In African, Hindu and Muslim customary marriages, the wife usually takes custody of the children. According to African customary law, the father usually remains the children’s natural guardian. The children of Hindu and Muslim marriages are regarded as illegitimate, so the mother is also the natural guardian.
In all cases, both parents have a duty to support the children.
An agreement about when, where and how the parent will have access to the children will need to be made.
If it is not in the best interests of the children for the other parent to have access rights, then the court can restrict access.
Maintenance is the obligation to provide another person, (for example a minor), with food, housing, clothing, medical care and education, extra mural activities, or with means that are necessary for providing the person with these essentials.
The court will issue a maintenance order requiring maintenance to be paid for the children.
It is a legal obligation of both the mother and father, grandparents or legal guardian of the child to pay maintenance.
Yes, it is compulsory to pay maintenance. Once a maintenance order has been made and granted by the courts the legal obligation of that parent or parents is to make sure that maintenance is paid. Should a person not pay the maintenance, then they are in breech of a court order and failing to make payment and bring up arrears, they can be arrested and jailed.
If there are problems with maintenance after the divorce has gone through, these can be taken to the Maintenance officer at the Magistrate’s Court, if the order was granted in the high court then you will be referred back to where the original order was granted.
Whether one party will have to pay maintenance or support to the other party depends on the circumstances.
If the parties cannot agree on how much should be paid then the court will decide.
We recommend that you contact your divorce lawyer, Cape Town to ensure that you have clarity on this topic.
How the family property will be divided depends on what property regime the couple adopted when they got married. This will usually be covered in the ante-nuptial agreement if there is one or, if there is no pre-marital contract, then it is determined by law.
The default legal position is that civil marriages are in community of property with accrual. This means that everything that you own is shared, including property and debts. Accrual means that everything that you earn or buy after you have married also becomes part of the joint estate.
If you get divorced, the shared property is divided equally between you. Any debts are also shared.
If the marriage is out of community of property without accrual, then each person keeps their own property from before the marriage and keeps whatever they earn or acquire during the marriage. Some things, like inheritances or gifts remain separate.
The default property regime has changed for different people at different times. The laws that were in place when you got married will determine what property regime applies to your marriage.
The Rule 43 Application is interesting because it is often raised during a divorce case. If the divorce proceeds for a lengthy period, perhaps a year or longer, the one party very often needs to apply to the court for maintenance and a contribution towards their legal fees. This is where her attorney would advise to bring a so-called “Rule 43 Application” to court.

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