Our Services
Mediation
Mediation preserves relationships between parties which often become strained or destroyed by the adversarial nature of litigation.
It provides and opens the scope for solutions to a dispute, which are beyond the scope and powers of judicial officers.
It is confidential – without prejudice and parties can feel free to disclose any information without the fear that it could be used against them a later stage. It saves time and therefore saves money. The cost of mediation is shared between the parties whereas with litigation each party carries the cost of their attorneys.
Litigation best described by Dr. De Jong … The outcome of litigation is unpredictable at best, placing your fate in the hands of persons less familiar with your problems than you are. Litigation is time-consuming and in turn extremely expensive. Once initiated, litigation acquires a destiny of its own. The likely result is that you lose control of the cost of the solution.
Litigation destroys relationships. The system is described as a warfare model and in the adversarial system of litigation the parties are pitted against one another. It is competitive and destructive, it’s about strategies and a “winner-takes-all” approach is adopted. It is often found that the best interests of the children fall by the wayside in the adversarial system of litigation.
At a time when families are going through the worst time in their lives, the legal system tends to make it far worse. Bitterness and unresolved emotions infused by litigation pushes parents apart and makes co-parenting post-divorce strenuous and challenging.
Divorce
“No fault” system
In South Africa, the “no fault” system of divorce is followed or adopted. This means that a divorce will be granted when only one party feels that marriage relationship has been Irretrievably broken down and believes that there is no reasonable chance for reconciliation. Hence the marriage can be dissolved.
Division of assets and liabilities
Your marital regime determines how assets will be divided upon dissolution of the marriage.
Marriage Regimes
- Out of community of property without the accrual system
The two estates are kept separate. What’s yours remains yours (assets and debts) and what’s theirs remains theirs.
- In community of property
The two estates become one after marriage. They both now share 50/50 in all debt and all assets.
- Out of community of property with the ANC with the accrual system
Each spouse manages their own assets and liabilities (debts)separately. The accrual system only comes into effect when the marriage is dissolved, whereby the spouse will be entitled to share in the growth of the two estates.
With this regime the parties may prescribe certain conditions or terms of the ANC. For example, certain assets (held prior to the marriage) could be excluded.
Types of divorces
- Contested or Opposed Divorce
A contested divorce only gets settled through litigation. It is extremely costly, and the Parties have no say on the outcome of the process. The parties are disempowered and depend on lawyers to present their case to a judge – who then makes a final decision. The mindset of litigation is a “winner-takes-all”. It is destructive and makes co-parenting after the divorce strenuous. And sadly, it is the children that ends up picking up the tab and paying a heavy price.
- Uncontested or Unopposed Divorce
Uncontested divorces are by far the most cost effective. Both parties are in agreement with the settlement and less time is spent on dissolving the marriage.
- Divorce through Mediation
Divorce through mediation empowers both parties because they are in control of the outcome.
A mediator will work with both sides as a neutral third party, to try and reach a settlement agreement. The mediator may not make any decisions. They facilitate the process and may highlight certain scenarios the parties could face if an agreement cannot be reached, and litigations commences. The process is without prejudice; therefore, the parties can freely share information.
A question that is often asked is, how many sessions will it take before mediation can be concluded? This depends entirely upon the party’s willingness to negotiate and also on the intricacies of the divorce.
The best interest of the minor children is paramount, and the Children’s Act will form an integral part of the mediation process. The aim of mediation is to preserve the relationship as best possible between the parties, and therefore co-parenting post-divorce is much easier and more successful. It has also been found that parties adhere to and honours their divorce settlement agreement far more than when the divorce was settled through litigation. Making the impact of the divorce far less on the children. This enhances and speeds up the healing process for the children exponentially.
Parenting Plans
While adults may feel anger, distrust, grief, or a sense of betrayal at the end of their intimate relationship with the other parent, they need to recognize that their relationship as co-parents should continue as long as both parents are alive, and that a positive relationship as a co-parent is best for their children.
- A parenting plan is intended to establish principles and rules to guide how parents will share responsibilities for and time with their children,
- A parenting plan should have enough detail to be useful, yet have enough flexibility to be realistic, and to meet the changing needs of the children involved.
- A parenting plan should reflect the interests and the needs of the individual children concerned. It is almost inevitable that a parenting plan will have to be revised as children grow older, and their needs and the circumstances of their parents change.
- The parenting plan is best viewed as a working document that will need to be revisited and likely revised over time.
The process of discussing issues, identifying areas of parental consensus and disagreement, reaching an agreement (often based on compromises), and then setting out the plan in writing is important. Having a parenting plan can help to minimize future conflict between parents by setting out clear guidelines and expectations for behaviour. Further, there is value in the process of making a parenting plan, as it gives parents an experience in collaborative problem solving. Minimizing conflict between separated parents is important. Children do significantly better if their parents co-operate and communicate with each other and conflict is low. If communication or co-operation with the other parent is not easy, a good parenting plan can provide the details of the parenting arrangements so that parents are not required to negotiate every decision that needs to be made.
- A parenting plan can minimize conflict by clearly setting out guidelines and expectations, and can help reduce friction between parents, so that each parent can support their child’s relationship with the other parent.
- A parenting plan that the parents have voluntarily made may be incorporated into a Court Order or Separation Agreement. This gives the parenting plan legal significance and makes it enforceable by a court
- If a parent doesn’t honour the parenting plan the defaulting parent face penalties, including fines, garnishee orders and jail time.
Parental Rights and Responsibility Agreement (Section 22 Agreements)
Pre-Mediation Coaching
Mediation as an alternative to litigation is fairly new in South Africa and we found that educating and coaching people for mediation helps them make better decisions. Resulting in better and sustainable settlement agreements. It also helps you co-parent more effectively and reduces conflict between you and your former partner.
If you’re preparing for a mediation to solve any type of problem, one or two sessions before the mediation can help you stay calm, make reasonable proposals and make decisions that can last. We help you practice 4 key skills in advance that can help you accomplish these goals during the mediation process
Maintenance
Every parent has the obligation to provide their children with housing, food, clothing, education and medical care. This legal duty to maintain is called ‘the duty to maintain’ or ‘the duty to support’.
A child must be supported or maintained by:
- his or her parents, whether married, living together, separated, or divorced, including parents who have adopted the child; and/or
- his or her grandparents, whether or not the child’s parents were married to each other. However, this varies from one case to another.
Payment methods
The court can order maintenance money to be paid in one of the following ways:
- At the local magistrate’s office or any other government office designated for this purpose
- Into the bank or building society account designated by the person concerned
- Directly to the person who is entitled to the money
- By means of an order that directs the employer of the person who is liable for paying maintenance to deduct the maintenance payment directly from the employee’s salary, in accordance with the new Maintenance Act, 1998.
Changing (increase or decrease) the amount of maintenance (variation or substitution)
You can request that the amount paid for maintenance be increased or decreased, either because it has become insufficient or because you can no longer afford to pay that amount of maintenance.
Maintenance defaulters, be warned! A new tracking system is on the cards
A stern warning to those parents who do not honour their obligation of paying child maintenance: there will be no place to hide. This is as a result of a new system, recently introduced by the Department, to track down maintenance defaulters from their unbecoming behaviour.
MP3: New system to track down maintenance defaulting parents, PowerFM, 09 Feb 2021, 06:59 min
[MP3: New efforts in chasing after maintenance defaulters, The Thinking point, SAFM, 10 Feb 2021, 07:15 min]
In an effort to ease dependency on social grants, the Department of Justice and Correctional Services are coming up with new ways of chasing after child maintenance defaulters. They will start using registered cell phone and telephone numbers, company registrations, credit profiles and so on. So basically, if you are one of those who chose to run, just know that you can’t hide anymore. To understand how the new approach is going to work, we are joined on the line by Josephine Peta – Senior Legal Admin Officer at the Department of Justice.
FAQ's on Maintenance
The Do’s & Don’ts of Child Maintenance!
What expenses may be claimed?
Reasonable support that is necessary for providing the child with a proper living and upbringing may be claimed. This includes providing necessities such as food, clothing, and housing, as well as paying for a proper education. The father may also be liable to contribute to the payment of laying-in expenses and maintenance from the date of the child’s birth up to the date on which the maintenance order is granted. The court may also grant an order for the payment of medical expenses or may order that the child be registered on the medical scheme of one of the parties as a dependant. To enable the court to grant a fair maintenance order, both parties must provide the court with proof of their expenses.
Your view of the other parent’s behaviour has no effect on your children’s right to maintenance. You still must pay maintenance, even if the other parent:
- remarries
- is involved in another relationship
- does not allow you to see the children or
- if either party later has more children.
Do I still have to pay maintenance when my right of access to my child has been denied?
Your duty to pay maintenance and your right of access to your children are two entirely separate matters and one has no relation to the other. Furthermore, children of either party do not influence the duty to support. However, the amount of maintenance to be paid may be amended by the court if either of the parties should bring such an application.
At what age should you stop paying maintenance?
The maintenance should be paid until the child is self-supporting.
What happens when the person responsible for paying child maintenance dies?
The maintenance money should be paid out from the deceased estate for future maintenance.
What happens in cases where a responded does not pay?
The complainant may apply to the maintenance court if the order remained unsatisfied for 10 days.
The following remedies to recover arrears are:
- Civil action to enforce a maintenance order
- A warrant of execution of movable / immovable property and, or
- Attachment of debt
- Emoluments attachement order.
In addition to the arrears, interest can also be claimed on maintenance arrears.
- Criminal Prosecution
- A criminal charge is brought against the defaulter
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122 Ridge Road, Bartlett.
almarie@fdrc.co.za
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+ 27 64 285 9453