The disadvantages of being separated in South Africa include the lack of legal finality, the risk of one party changing their mind, the difficulty of moving on emotionally, and the impact on the children. The separation does not end the marriage, and the parties are still legally married. The separation can be a useful interim step on the way to divorce, but the parties should consider the disadvantages before choosing the separation route.
This page explains the disadvantages of being separated in South Africa, the practical considerations, and the alternatives to separation. If you need help with a separation matter, our Sandton-based Family Law team can assist.
What separation is
Separation is the decision to live apart, and the parties are still legally married. The separation can be informal, where the parties simply stop living together, or formal, where the parties enter into a separation agreement.
The separation agreement is a written contract that records the terms of the separation, including the division of the assets, the maintenance of the children, and the spousal maintenance. The agreement is signed by the parties, and the agreement is enforceable under contract law.
The main disadvantages of separation
The main disadvantages of separation are listed below in the order they usually appear in practice.
- The lack of legal finality, where the parties are still legally married and the separation does not end the marriage.
- The risk of one party changing their mind, where the separation can be reversed at any time.
- The difficulty of moving on emotionally, where the parties are still tied to each other through the marriage.
- The impact on the children, where the separation can be confusing for the children and the children may struggle with the uncertainty.
The financial disadvantages of separation
The financial disadvantages of separation are listed below in the order they usually appear in practice.
- The cost of maintaining two households, where the parties continue to share the marital assets but live apart.
- The cost of the legal formalities, where the separation agreement is drafted by an attorney and filed with the court.
- The cost of the negotiation, where the parties use a mediator or an attorney to negotiate the terms.
- The cost of the spousal maintenance, where one party continues to pay the spousal maintenance to the other party.
The emotional disadvantages of separation
The emotional disadvantages of separation are listed below in the order they usually appear in practice.
- The uncertainty of the separation, where the parties are not sure whether the marriage will recover.
- The difficulty of moving on, where the parties are still tied to each other through the marriage.
- The impact on the children, where the children may struggle with the uncertainty and the divided loyalties.
- The risk of one party starting a new relationship, where the parties are still legally married and the new relationship can be complicated.
Alternatives to separation
The alternatives to separation are listed below in the order they usually appear in practice.
- Divorce, where the marriage is legally ended and the parties are free to remarry.
- Mediation, where the parties use a mediator to negotiate the terms of the separation or the divorce.
- Counseling, where the parties use a counselor to work on the marriage or to deal with the separation.
- Legal separation, where the parties are still legally married but live apart, and the agreement sets out the terms of the separation.
Common Mistakes to Avoid
These are the patterns that leave parties with the wrong outcome.
- Skipping the separation agreement. The separation agreement is the document that records the parties’ agreement on the terms of the separation.
- Skipping the supporting documents. The court will not record the agreement without the supporting documents.
- Skipping the negotiation. The negotiation is the process by which the parties agree on the terms of the separation.
- Letting the dispute escalate. The right path is to engage with the other party and apply for variation where appropriate.
- Quitting the process before the agreement is signed. The separation is not final until the agreement is signed.
Frequently Asked Questions
What are the disadvantages of being separated in South Africa?
The disadvantages of being separated in South Africa include the lack of legal finality, the risk of one party changing their mind, the difficulty of moving on emotionally, and the impact on the children. The separation does not end the marriage, and the parties are still legally married.
What is separation in South Africa?
Separation is the decision to live apart, and the parties are still legally married. The separation can be informal, where the parties simply stop living together, or formal, where the parties enter into a separation agreement.
Why is separation not the same as divorce?
Separation is the decision to live apart, and the parties are still legally married. Divorce is the legal end of the marriage, and the parties are free to remarry. The separation does not end the marriage, and the parties are still legally married.
What are the financial disadvantages of separation?
The financial disadvantages of separation include the cost of maintaining two households, the cost of the legal formalities, the cost of the negotiation, and the cost of the spousal maintenance.
What are the emotional disadvantages of separation?
The emotional disadvantages of separation include the uncertainty of the separation, the difficulty of moving on, the impact on the children, and the risk of one party starting a new relationship.
What are the alternatives to separation in South Africa?
The alternatives to separation include divorce, mediation, counseling, and legal separation. The right choice depends on the specific circumstances of the matter, and the parties should seek legal advice to ensure that their interests are protected.
Can a separation be reversed in South Africa?
Yes. A separation can be reversed where the parties decide to reconcile. The parties can sign a new agreement that records the reconciliation, and the parties can continue with the marriage as before.
Get help with your separation. If you need help with a separation matter, Otrebski Attorneys’ Family Law team in Sandton can assist. As a 100% women-led firm with a 5-star Google rating, we focus on compassionate, practical legal solutions for families.
Disclaimer. This article provides general information about the disadvantages of being separated in South Africa. It is not legal advice and does not replace consultation with a qualified family attorney. The relevant law is set out in the Divorce Act 70 of 1979, which may be amended. Confirm the current position with the Department of Justice and Constitutional Development or speak to a family attorney before relying on anything in this article.