The process of divorce is generally an emotional experience for all parties concerned. When a couple decides to end a marriage, it causes strain, and has far reaching consequences on both husband and wife, the children, relatives and extended family.
Three types of divorce
There are three types of divorce in South Africa: uncontested, mediated and contested. It is rare to find any divorce that is not built on acrimony, disappointment and emotional trauma, however there are ways to handle divorce that can alleviate stress and help individuals to regain mental and emotional wellbeing, while supporting them in the process of rebuilding a successful future.
Uncontested divorce
- This is the quickest and least expensive option and minimises the emotional stress.
- In an uncontested divorce the spouses work together and have agreed to the terms of the settlement agreement, together with a parenting plan if there are children born from the marriage. The settlement agreement will govern the patrimonial and financial consequences of the marriage, including spousal or child maintenance. The parenting plan will assist the parties in exercising their parental rights and responsibilities to the child/children; i.e. care and contact, guardianship and any contact arrangements unique to the family’s circumstances.
- An attorney can be consulted by both spouses to assist with legal advice and draft the above documents. After the parties have agreed to the terms of the settlement agreement and parenting plan, it is signed by both spouses and made an order of the court.
- Uncontested divorce proceedings may be finalised in a matter of weeks.
Mediated divorce
- Couples who struggle to reach agreement on the terms of their divorce settlement, may opt to engage the services of a family law attorney and /or professional mediator to help them negotiate and reach agreement.
- Mediators are impartial and highly trained professionals skilled in helping couples to set aside short-term differences and focus on reaching a reasonable settlement.
- Once the mediator successfully helps the spouses to reach agreement, their attorney or attorneys can draft the official settlement agreement, which is then signed by both spouses and made an order of the court.
- Mediation can dramatically reduce the cost of contested divorce proceedings and can help to shorten the process.
Contested divorce
- Contested divorces can drag on for years and may take three or more years to settle. It causes considerable emotional and financial distress to the parties and children concerned.
- A divorce is considered contested when spouses cannot agree on the terms of their divorce, varying from maintenance for the spouse and/or children to division of assets and child-care and contact. In some cases one or both spouses may refuse to settle for emotional reasons.
- If a divorce remains contested, the matter will be set down for trial when a court decides on the terms of the divorce settlement and grants an order of divorce. A trial can result in very high legal costs.
Is an amicable divorce possible?
The answer is yes, if individuals can keep the emotions of others in mind: their family members, especially children. And also if there is an understanding that the more acrimony is brought into play, the longer and more expensive the process will become. Every time one becomes choked with anger, one should, with a surge of self-discipline, remember three things: the trauma of others, speed of the process, and the cost involved – all important motivators for calm and decorum.
Consider the wellbeing of your children as a priority. Children love both their parents, and for them to see the people they love in torment and distress, must be bad enough – but to also know that they are going to have to choose with whom they might live – or even worse, have someone else’s decision shoved upon them, only adds to the anxiety and unhappiness they are already experiencing.
Often children don’t understand the adult reasons for the acrimony, but will blame themselves. It is much more useful to show them that you are able to behave with dignity and acceptance throughout the process. An agreed resolution as soon as possible should always be the goal. That way everybody can find some level of reasonableness and comfort.
However, in any negotiated situation, one must stand one’s ground, and that means dealing with confrontation and conflict – but always keeping the needs of others in mind. If you can reach a friendly agreement with regard to your children’s welfare, you are more than halfway to ensuring an amicable divorce, which will ensure a positive future relationship for the children with both parents. The worst thing one spouse can inflict on another is to use the children as bargaining chips.
Remember, if you treat everyone with respect and generosity – even your spouse – you will feel more at ease, and in turn be treated in a similar way.
If you are contemplating a divorce, make sure you get the best advice and support with top professionals who are well experienced at handling the difficult and complicated interactions that divorce will often elicit. After all, you want the best outcome for yourself and your children. If your case runs to court action, then it is important to work with practitioners who show heart and understanding of the emotions at play in a divorce trial.
