Common Misconceptions About Divorce in South Africa: Separating Fact from Fiction

Divorce is a significant life event, and it’s often surrounded by myths and misconceptions that can cause confusion and anxiety. Whether you’re considering divorce or already in the process, it’s important to have accurate information about what to expect. At Barter McKellar, we’re here to help you separate fact from fiction, providing clear and reliable guidance on the realities of divorce in South Africa.

Myth 1: You Need to Prove Fault to Get a Divorce

Fact: In South Africa, the concept of "fault" in divorce proceedings has been largely eliminated. The only legal ground for divorce is the irretrievable breakdown of the marriage. This means that you don’t need to prove that your spouse did something wrong, such as adultery or abuse, to obtain a divorce.

• Irretrievable Breakdown: The court will consider the marriage to have irretrievably broken down if there is no reasonable prospect of the spouses reconciling. This can be demonstrated by evidence of separation, infidelity or other factors that indicate the marriage cannot be repaired.

• No-Fault Divorce: Because South Africa follows a no-fault divorce system, the focus is on whether the marriage can be salvaged, rather than who is to blame for the breakdown.

Myth 2: The Wife Always Gets Custody of the Children

Fact: Child custody decisions in South Africa are based on the best interests of the child, not the gender of the parent. Both mothers and fathers have equal rights to seek custody of their children and the court will consider a range of factors to determine what arrangement will best serve the child’s needs.

• Best Interests of the Child: The court will evaluate factors such as the child’s age, emotional ties to each parent, the parent’s ability to provide for the child and the child’s wishes (depending on their age and maturity).

• Joint Custody: In many cases, the court may order joint custody, where both parents share responsibility for the child’s upbringing. This arrangement allows the child to maintain a strong relationship with both parents.

Myth 3: The Higher-Earning Spouse Will Automatically Lose Half of Their Assets

Fact: The division of assets in a South African divorce depends on the marital property regime under which the couple was married. It’s not always a simple 50/50 split.

• In Community of Property: If you were married in community of property, all assets and liabilities are shared equally between the spouses, regardless of who earned more or who brought more assets into the marriage.

• Out of Community of Property with Accrual: If you were married out of community of property with accrual, each spouse keeps the assets they had before the marriage, and only the increase in each spouse’s estate during the marriage is shared.

• Out of Community of Property without Accrual: In this regime, each spouse keeps their own assets and liabilities, and there is no sharing of assets upon divorce.

Myth 4: You Can’t Get Divorced if Your Spouse Refuses to Sign the Papers

Fact: In South Africa, you can obtain a divorce even if your spouse refuses to sign the divorce papers or participate in the proceedings. If one spouse is uncooperative, the court can grant a default judgment.

• Uncontested Divorce: If your spouse agrees to the divorce and the terms of the settlement, the process can proceed relatively smoothly as an uncontested divorce.

• Contested Divorce: If your spouse contests the divorce or refuses to cooperate, the case may go to trial, where the court will make decisions on issues such as asset division, custody and support.

Myth 5: Divorce Always Means a Lengthy and Expensive Court Battle

Fact: While some divorces can be contentious and drawn-out, many divorces are resolved through mediation or settlement agreements, which can save time, money and stress.

• Mediation: Mediation is a process where a neutral third party helps the spouses reach an agreement on the terms of the divorce, including asset division, custody and support. This approach is often quicker and less adversarial than going to court.

• Settlement Agreement: If the spouses can agree on the terms of the divorce, they can draft a settlement agreement that outlines how issues like assets, custody and maintenance will be handled. The court will review and approve the agreement, making it a legally binding order.

Myth 6: Once a Divorce Agreement is Final, It Can’t Be Changed

Fact: Divorce agreements can be modified under certain circumstances. If there has been a significant change in circumstances—such as a change in income, relocation or a change in the child’s needs—either party can request a post-divorce modification.

• Child Custody and Support: Modifications to child custody or support can be requested if there is a substantial change in the child’s needs or the financial situation of either parent.

• Spousal Maintenance: Spousal maintenance can also be modified if there is a significant change in the financial circumstances of either party.

Myth 7: Prenuptial Agreements Aren’t Enforceable in South Africa

Fact: Prenuptial agreements, known as antenuptial contracts in South Africa, are legally enforceable and can play a crucial role in protecting your assets in the event of a divorce.

• Customizing Your Agreement: Antenuptial contracts allow couples to specify how assets will be divided and whether the accrual system will apply. This agreement must be signed before the marriage and registered with the Deeds Office to be valid.

• Enforcement: Courts generally uphold antenuptial contracts unless there is evidence of fraud, coercion or significant unfairness.

Myth 8: Divorce Always Negatively Impacts Children

Fact: While divorce is undoubtedly a challenging experience for children, its impact can be managed with the right support and parenting approach. Children are often resilient, and when parents work together to prioritize their well-being, the negative effects can be minimized.

• Co-Parenting: Successful co-parenting involves both parents working together to provide a stable, loving environment for their children. Open communication and a willingness to cooperate are key to helping children adjust to the changes.

• Support Systems: Providing children with access to counseling, support groups and a strong network of family and friends can help them navigate the emotional challenges of divorce.

How Barter McKellar Can Assist with Your Divorce

At Barter McKellar, we understand that divorce is a complex and emotional process, often complicated by myths and misconceptions. Our experienced family law attorneys are here to provide clear, accurate information and expert legal guidance every step of the way.

1. Legal Consultation and Case Evaluation

We begin by evaluating your situation to provide you with a realistic understanding of your rights and options. We’ll clarify any misconceptions you may have and outline the best course of action for your divorce.

• Personalized Legal Advice: We provide tailored legal advice based on your specific circumstances, ensuring you have the information you need to make informed decisions.

• Comprehensive Case Review: Our attorneys will review your case in detail to identify any legal issues and opportunities for a favorable resolution.

2. Representation in Divorce Proceedings

Our team will represent your interests throughout the divorce process, whether it involves negotiation, mediation or litigation. We aim to achieve the best possible outcome while minimizing stress and conflict.

• Mediation and Settlement: We facilitate mediation and negotiate settlement agreements that protect your interests and provide a fair resolution.

• Court Representation: If your case goes to court, our experienced litigators will advocate for your rights and work to secure a favorable judgment.

3. Post-Divorce Modifications

If you need to modify your divorce agreement due to changes in circumstances, we can assist with filing the necessary legal documents and representing you in court.

• Modification Requests: We handle requests for modifications to child custody, support, and spousal maintenance, ensuring that your agreement reflects your current needs.

• Enforcement: If your ex-spouse is not complying with the terms of the divorce agreement, we can help you enforce your rights through legal action.

Why Choose Barter McKellar?

At Barter McKellar, we are committed to providing high-quality legal services that help you navigate the complexities of divorce. Our team of skilled attorneys has extensive experience in family law and is dedicated to achieving the best possible outcome for you and your family.

• Expertise in Family Law: Our attorneys have deep knowledge of South African family law, making us uniquely qualified to handle your legal needs.

• Tailored Legal Solutions: We provide customized legal services that address the specific challenges and opportunities of your situation.

• Client-Centered Approach: We prioritize clear communication, transparency, and a focus on achieving your personal and legal goals.

Contact Us

If you’re considering divorce or need help understanding your legal rights, trust the experts at Barter McKellar to provide the guidance and support you need. Contact us today to discuss your case and how we can assist.