Will you marry* me? (Ts and Cs apply)

Divorce is a huge shock to the system and often comes as a surprise. It is highly unlikely that, at the precise moment you were saying ‘I do’, you were secretly looking forward to the day you get to say ‘I have had enough, let’s part ways’. When you are in love, you might even take offence when the subject is raised!

Oh, but that’s not me! We’ve been together for five years – of course, there is tension sometimes! He/she works long hours/the children are just going through a difficult phase/we just need a holiday/change of scenery/another car …

All of the above may be true. However, the fact that you may have grown accustomed to how things are – which roles and responsibilities belong to whom and what the generally expected outcomes of interactions with your spouse are. You may not have been aware of how serious your ‘issues’ are. The traditional 5th-anniversary gift, in case you were wondering, is wood. The truth is that, according to StatsSA, four out of ten – the highest percentage of marriages in South Africa during 2016 that ended in divorce – splintered irrevocably during years five to nine.

When the break comes later

The sad reality is that the longer you have been married, the more complex divorce can become. Factors relating to what feels like a ‘lifetime together’ account for this:

  • Financial matters may have become more complex – not only in terms of accumulated assets and investments but also due to medical aid and retirement fund contributions as well as short and long-term debts incurred.
  • Children may be involved – children who love (or pretend to hate, if they are teenagers) BOTH of you. The emotions that they experience may be extreme and these may show in their behaviour, precisely at the moment when you are going through emotional upheaval and conflict with your spouse yourself.
  • Starting or restarting a career may be challenging – one partner may have given up or put their education or career on hold to stay at home and look after the children, or could not advance their career as rapidly due to geography. Apart from age-related bias, an absence from the world of work may mean that employability drops as qualifications may be less relevant and the person may not have demonstrable proof that they have kept up with current trends.
  • Maintaining one’s lifestyle may prove to be difficult – shared living expenses now need to make way for individual budgets alongside many hidden costs which may be overlooked, such as rental deposits, levies and administrative costs. After a ‘lifetime’ of sharing, you may not know where to start and what to include when it comes to drawing up a budget.

Divorce – the second most stressful life event of all

The Holmes & Rahe Stress Scale, a scale that measures the link between stressful life events and physical health outcomes, divorce is the second most stressful, second only after the death of a spouse. It is not surprising that those involved may suffer physical and mental health challenges and a state of paralysis and trauma is so often experienced.

It is vital that every individual involved is supported on an individual basis, including the children. Everyone needs a customised supportive team of professionals, allies and friends as soon as possible!

Death of a spouse
Divorce
Marital separation
Imprisonment
Death of a close family member
Personal injury or illness
Marriage
Dismissal from work
Marital reconciliation
Retirement
The top 10 most stressful life events, according to the Holmes & Rahe Stress Scale

On who holds the power and saving costs

Divorce is expensive! To save on fees, couples often agree to use the same attorney and/or financial planner. In most instances, they will turn to a person whom they trust by virtue of the fact that they have already had dealings with the person in the past. In most cases, this will be the attorney and/or financial planner of the socially and economically stronger and better-connected person in the relationship.

Who these persons will be, who finds them and who pays for them may be greatly influenced by differences between partners. These elements may include, but may not be limited to:

  • Your respective employment statuses, earnings and resources
  • The decision-making influence each spouse has in the relationship
  • Your levels of education and knowledge about finances
  • Your social networks outside of the home or family
  • The relationship dynamics within your relationship
  • Your religious affiliations and world view (e.g. how the roles of women/men are seen)

The greater the difference in a sense of power there seems to be, the more likely it is that the one partner will give in to the other’s ‘suggestions’ even when they do not fully agree and at the risk of coming off second-best.

A conflict of interest – the legal ramifications

Using the same legal team or financial advisor – particularly when there are complicating factors – may lead to a conflict of interest, as making a finding that is clearly in favour of one over the other is against the law.

It is also of critical importance to have BOTH legal representation and a financial advisor on board as there are distinct differences in their areas of expertise and complicating legal intricacies to consider in the short, but particularly in the longer-term.

Divorce is not ‘just’ about your relationship falling apart. It is just as much about dismantling and reshaping a joint way of living in the world to that of separate realities.

Support for all parties concerned

I advise all clients that it is best to develop a good support team as soon as possible for each party that includes an attorney, a financial planner, a counsellor of some kind and a group of allies and friends.

1. Financial advice
This is not only a matter of notifying your service providers.

  • There may well be investment portfolios that need to be unbundled and assets to be redistributed.
  • One spouse may have added the other as a dependant or beneficiary for medical aid, life insurance, risk cover or retirement fund purposes.
  • The incidental and recurring expenses relating to education and care of children need to be considered, not only in the present but for the future as well.
  • How debt will be taken care of needs to be decided. This largely depends on how you chose to become married – whether it was in or out of community of property, with or without accrual.

All of the above will no doubt have tax implications as well.

Speak to an actual human – I cannot stress the importance of this enough! At a time like this, you need someone who is not solely dependent on the commission they earn from selling you another policy. You need a professional financial advisor, not a sales agent!

2. Legal assistance
Should you not be able to afford your own legal representation, find the Family Law Clinic nearest to you. They will be able to assist you with all the legal issues relating to the divorce itself, but can also advise you on protection orders relating to domestic violence and sexual abuse, as well as securing access to and maintenance for your children.

3. Mental health support
Your choice of a counsellor is important and the person may come from different areas of expertise:

  • A clinical psychologist, psychiatrist or therapist may assist, not only with dealing with the stress of the situation, but also where competency needs to be proven or additional accommodations such as ongoing medical aid contributions are required in a contested divorce.
  • A clinical social worker may be helpful, particularly when there are children, dependants with disabilities or elderly adults involved. Additional processes involving the Maintenance Court may need to be started.
  • A spiritual guide and counsellor from the religious community you belong to may assist you with understanding and navigating the religious prescriptions involved in getting a religious divorce. Make sure that this is a person you feel safe with, who is aligned with your world view and beliefs. Make sure that such a person has up-to-date knowledge of changes in the law.

According to a statement on Gov.za, Cabinet has approved the submission of the Recognition of Customary Marriages Amendment Bill of 2019 to Parliament. Section 7(1) and (2) of the Recognition of Customary Marriages Act (RCMA), 1998 (Act 120 of 1998) discriminated unfairly against women in customary marriages, but were declared constitutionally invalid and have now been brought in line with the judgment of the Constitutional Court in 2017. The Bill also provides for the equal treatment of women in pre-Act monogamous and polygamous customary marriages.

  • Do not forget the children! They will also need a safe and appropriate support system to help them sort through their experiences of the separation. At the time of the divorce, you may not be in a position to fully support them in an unbiased and emotionally present way. They will experience heightened stress as they may feel their loyalties are divided between you and think that they need to take sides.

4. Allies and friends
Turning to friends for support is especially difficult and painful if most of your social networks are shared. Friends are therefore placed under unenviable pressure to ‘pick a side’. It is always a good thing to build your separate friendships as an individual throughout life, even as a married person.

Looking at the beast up close

Now that you have come to the point of no return and divorce is a reality, let us consider the different ways in which you can be divorced.

Please note: the following is written in the context of South African law. Each country has its own laws and there may be regional differences and requirements within those countries. Always confirm these with local experts.

There are two main types of divorce:

TYPE 1: AN UNCONTESTED DIVORCE

In an uncontested divorce, the spouses work together to agree on the terms of the divorce. These terms include (but may not be limited to) maintenance, how to divide their assets and how their children will be cared for. This is the quickest option and can be finalised in a matter of weeks. An impartial attorney can be consulted and appointed by both spouses to take care of their interests and draft the official settlement agreement, which is signed by both spouses and then made an order of the court.

This is definitely the first prize. On the face of it, this option may seem to be the best, least expensive option with the best chance of preventing further emotional stress to family members.

However, this only holds true if the divorce is uncomplicated (division of assets, settling of debt and child care and other family responsibility issues can be resolved easily) and there is mutual goodwill, equality and fairness regarding rights, influence, participation in decision-making and access to resources and opportunity. A win-win situation, in other words.

The reality – most often
There will be a whole lot of emotions flying around the room. People may feel betrayed and angry. Some may feel the need to ‘punish’ the other. Others may panic, or fear for their futures and would, therefore, feel the need to grab as much as they can get. Conversely, some may feel so traumatised that they lose all self-confidence and therefore doubt their judgement, believing whatever is said to them.

Others may feel guilt and remorse and an inflated sense of duty and loyalty that may lead to them giving up more to the other party than is reasonable or equitable. For some the mere thought of dealing with the matter makes them want to run away, no matter the cost. They will accept anything, as long as the ‘D’ swear word goes away as quickly as possible, regardless of far-reaching consequences for the future. Society also consciously and subconsciously favours and gives more voice and power to certain groups and individuals rather than to others. Men, those who contribute the most economically and control the purse strings, the well-educated, adults and able-bodied and mentally healthy persons most often have the most say.

Should you and your spouse find it difficult to agree on the terms of the divorce, the attorney may suggest and appoint a mediator. This is a person who specialises in establishing a compromise. Using a mediator can save greatly on costs.

Know that you are entitled to be given a choice of mediators and should research their track records and service offerings. You may, at any time, voice your concerns if you feel the mediator is not being fair. You may refuse any terms offered.

Should you not be able to come to an agreement, the divorce needs to go to court as a contested divorce, where a Judge will make a determination, based on submissions by both parties.

TYPE 2: CONTESTED DIVORCE

In a contested divorce both spouses appear in court repeatedly. Here both parties should have legal representation and a variety of expert witnesses may be called, including forensic auditors, mental and other health care practitioners, social workers and substance abuse experts. They can and should be cross-examined.

Ultimately, the court decides the terms of such a divorce. Contested divorces can drag on for years, and can cause great emotional and financial harm to all family members. In a contested divorce, the costs are variable, time-based and heavily dependent on the conduct of the parties. It can cost hundreds of thousands of Rands in fees and disbursements.

This underscores, again, the importance of a comprehensive support structure (as explained above) for each individual involved – for you, your spouse and your dependents.

  • You need to understand and gather physical proof of your own circumstances: Know how you were married (in or out of community of property). Investigate your personal and combined financial situation. You need to draw up a realistic and comprehensive budget that encompasses all the requirements you need to live as a single person or single parent. Note: You are not automatically entitled to all of this in your divorce settlement.
  • You need to arm yourself with knowledge: Whereas personal experience and knowledge can rarely replace professional guidance, you need to equip yourself as best you can so that you can protect yourself and make informed decisions. You need to have enough insight into the implications of agreements and legal issues to ask the right questions and evaluate the advice given to you.

Speak to knowledgeable and compassionate humans! Take your time and think about the issues carefully. Ask as many questions as it takes. This is not just about a relationship that no longer works for both parties, it is as much about how you (and your partner and children) will live in the world, going forward.

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