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Divorce Attorneys

Divorce in South Africa Explained
Getting a online Divorce PDF Print E-mail
Written by Louwrens Koen   
Tuesday, 03 February 2009 20:15

Divorce is getting more widespread. And because of its increasing numbers, online divorce options are fast becoming easier alternatives. However, people should realize that divorce through online methods is not as simple as it sounds.

Online divorce alternatives are increasingly attracting many South Africans because of the more accessible information and the assistance that is easily provided for those who are looking for help. Although not all divorce web sites are able to give the choice of actually providing the process of divorce, these sites often offer essential information that save visitors time and effort spent on searching for information from legal experts. When those seeking for online divorce have gathered the necessary information and they have hired qualified and experienced divorce lawyers, these individuals will come better prepared for the start of the process of divorce.

There are some online divorce sites that deal with the paperwork necessary in the divorce process. Usually, the processes involved in online divorce depend on the state and the divorce laws. Because of the fact that divorce laws have undergone significant development and changes over the years and have become more lenient, more options for online divorce are now being made available. But despite the availability of numerous sites that offer online divorce, a lot of attorneys who are experts in their fields warn people against this type of divorce. According to the experts, there are numerous variables entailed in divorce that can be easily overlooked in an online divorce.

Making the decision to divorce is difficult. However, the event becomes harder when you know that there are still numerous things to get over and done with. And even if you and your spouse have both agreed to the decision to have your marriage dissolved, you still need to deal with divorce paperwork. In addition to this, you also need to spend a considerable amount of money just to have a divorce attorney handle an uncontested divorce. Plus, even if you decide to do things yourself, it will also entail countless hours of research through pages of court rules and statutes, and leafing through divorce papers.

For these reasons, online divorce web sites were made. These divorce sites are a convenient and affordable way that help you finish the divorce process without much delay. While there are some divorce web sites that offer blank divorce forms or do-it-yourself divorce kits, some online divorce web sites offer completed divorce papers required for the finalization of the divorce.

In some online divorce sites, clients are required to answer some pertinent questions. After a few days, the papers are returned and the only thing needed is the client's signature on the completed document. This is accompanied by easy to comprehend instructions that tell you what to do when you get your documents, including filing with the court, serving the service of process to your spouse, and obtaining your final divorce decree. To make it easier for clients, these online divorce web sites provide e-mail support anytime during the process.

 

Last Updated ( Tuesday, 02 March 2010 18:45 )
 
Failure to Pay Maintenance
What legal steps can you take if your spouse fails to pay maintenance?

Your spouse has been ordered to pay maintenance in terms of a divorce order or maintenance court order. If he fails to do so, the following are your remedies:

  1. Maintenance enquiry in terms of the Maintenance Act.
    1. You would lodge a complaint with your local maintenance officer that your spouse, although legally liable to maintain you, has failed to do so;
    2. The maintenance officer will then investigate the complaint and may then institute an enquiry in a maintenance court in the area of jurisdiction in which your spouse resides;
    3. If the maintenance officer is satisfied that your complaint is justified, he or she will require your spouse to appear before a magistrate for examination.
    4. After considering all the evidence, the maintenance court will make such order as it deems fit including granting a garnishee order requiring your spouse's employer to deduct the maintenance amount from his salary and paying it over to you.
  2. If your maintenance order was granted by the maintenance court
    1. If your spouse fails to make payment, you can execute against his movable property, attach goods, emoluments (any monies that may be due to him) or any debts that are due to him.
    2. You must approach the maintenance court for the authorization of the issue of a warrant of execution to attach goods, emoluments or debts.
    3. The application for the authorization of a Warrant of Execution to attach goods, emoluments or a debt must be accompanied by a copy of the maintenance or other order in question and a statement under oath or affirmation stating the amount which the person against whom the order was made as though to pay. All these forms are available at the offices of the maintenance court.
  3. If your maintenance order was granted pursuant to a decree of divorce
    1. You can apply to the High Court that issued that decree for the issue of a Warrant of Execution against the property of your spouse. You will need your attorney to assist you in that regard. Obviously, you will not take such a step unless your spouse has movable assets.
    2. Similarly, you could ask your attorney to take steps to obtain a garnishee order against your spouse's salary if he is employed or even to attach the proceeds of an insurance policy or pension scheme: Read more
    Similarly, you could ask your attorney to take steps to obtain a garnishee order against your spouse's salary if he is employed.
  4. Criminal procedure
    1. Subject to the defence that failure to make a payment in terms of a maintenance order is because of lack of means, a person who fails to make a particular payment in accordance with a court or maintenance order is guilty of an offence and liable on conviction to a fine or to imprisonment for a period not exceeding 1 year or to imprisonment without the option of a fine;
    2. Your are perfectly entitled to lay a criminal charge against your spouse if he fails to stick to the terms of the decree of divorce or any order made by a maintenance court;
    3. Although this step will likely result in your spouse's being arrested it will not necessarily result in your receiving payment.
    4. On a practical level, however, if your spouse is arrested and he immediately pays all the arrears it is more than likely that the state will drop the charge so this is yet another lever that you have to extract payment.
 
If I got married outside of South Africa can I get divorced here?
If I got married outside of South Africa can I get divorced here?
A: The Jurisdiction of the Divorce Act states as follows:

".A court shall have jurisdiction in a divorce action if the parties are or either of the parties is:

(a) domiciled in the area of jurisdiction of the court on the date on which the action is instituted; or

(b) ordinarily resident in the area of jurisdiction of the court on the said date and have or has been ordinarily resident in the Republic for a period of not less than one year immediately prior to that date."

in other words if you have chosen you domicile address (residential address) within the area of the court which you will be getting the divorce through - you can go ahead with the divorce; or

if you have been a resident for more than a year within the country and you would like to institute action against your spouse, you would be able to do so even if you were not married in South Africa.

 
Access to minor children?

"Access enables a person to see, and spend time with and enjoy the company of a child of whom he or she does not have custody."

Where parents do not live together, access serves to promote a continuing parental relationship between the non-custodian parent and his or her child, but without displacing the discretion of the custodian parent to control the child's day-to-day upbringing.

It is generally recognised that a child's welfare is usually best promoted through access by the non-custodian parent, especially where there is already a developed parent-child relationship. But no one has an unassailable right of access to a child; the test is always what is in the child's best interests.

However, once an access order is granted, it may be regarded as conferring an enforceable right of access upon the person who is not the child's custodian and with which the latter is bound to comply.

Access after divorce

After divorce and in the absence of any order to the contrary, the non-custodian parent is prima facie entitled to reasonable access. No specific order need to be made to give effect to this entitlement and divorce orders are often silent on the question of access.

Enforcement of access

An access order is binding on both parents until varied or set aside by a court. Save in cases of grave emergency, the proper approach for a parent who is dissatisfied with such an order is to approach the High Court for a variation thereof. Any person who hinders or obstructs a person entitled to access commits the offence of contempt of court. Two avenues are open to an aggrieved party who wishes to institute contempt of court proceedings. First, he or she may lay a complaint with the police, in which event the matter will proceed as a criminal prosecution, should the state decide to prosecute. Second, he or she may apply directly to the High Court for the committal of the custodian parent for contempt. In both cases, it must be proved that the defaulting parent has acted willfully and mala fide.

The fact that a parent is found to be in contempt of court does not mean that the court will automatically enforce the order. The overriding consideration remains the child's best interests.

Rescission or variation of an access order in terms of the Divorce Act

An access order made in terms of the Divorce Act may be rescinded or varied at any time if the court finds that there is sufficient reason therefor.

 
Getting a divorce is not easy PDF Print E-mail
Written by Louwrens Koen   
Tuesday, 03 February 2009 20:11

You would have to deal with a lot of changes in relationships, finances and emotions. The tumult that naturally follows a broken relationship is probably the reason why some may not immediately think of asking for practical divorce advice before looking for a lawyer. Getting some advice though can help things go smoother for you and your family.

Why You Need Advice

Once you have decided that divorce is the right road to take, nothing will ever be the same again. You need to get the right kind of tips and advice to deal with the changes that will follow and the steps that you need to take. Different pieces of information on divorce will range from the very practical to the very complicated emotional realm.

First of all, know the steps that you need to take. You need to get an overview on what exactly happens before, during and after divorce proceedings. You need information on papers and forms to file, state regulations, child custody, settlements, child support and financial costs. Most importantly, you probably need a hand finding the right lawyer to handle your case.

After getting through the technical procedure of divorce, you would also need to get a glimpse of how it will be after separation. This may present new challenges in the area of budgeting, shared parenting and finding a better job as a single parent.

More than the technical and procedural aspect of divorce, people also need assistance on finding out exactly how to handle emotions, how to prepare and manage the kids, and how to pick up the broken pieces and start all over again. In most cases, comprehensive divorce advice is more than a paid lawyer can provide you.

Where to Find Advice

The technical aspects of divorce can probably be handled best by a legal expert. It would be great if you had a friend who could give you a heads up on the legal mumbo jumbo. Many online sites however also provide that and more.

These days, online sites for couples who wish to part ways offer thorough and accurate pieces advice. This is good news because you can get free information in the privacy and comfort of your own home even before you take the first steps to court. The more reliable sites have real legal experts who can dish out free information. Other websites also provide counseling or peer counseling services. You can also easily swap information and tips with forum members who are in the same boat as you are. Some sites specifically cater to either men or women only in recognition of the fact that different genders have different needs.

Disadvantages of Online Advice

The wealth of information online can easily bog you down or overload you. It could also become difficult choosing the right place to start looking for reliable divorce advice. In the internet, you could easily land on a site where you don't get much or where you get the wrong information. It could take a little more effort on your part to find the perfect advice site for you.


Last Updated ( Tuesday, 02 March 2010 18:45 )
 
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