The biggest mistake during a divorce in South Africa is moving out of the matrimonial home before the divorce is final. The move can be used against the parent in the custody dispute, and the parent can be seen as having abandoned the children. The matrimonial home is also part of the matrimonial property, and the move can complicate the division of the assets. Other common mistakes include failing to gather the supporting documents, skipping the settlement agreement, and starting a new relationship before the divorce is final.
This page explains the biggest mistakes during a divorce in South Africa, the practical steps to avoid them, and the process to follow. If you need help with a divorce matter, our Sandton-based Family Law team can assist.
Why moving out is the biggest mistake
Moving out of the matrimonial home before the divorce is final is the biggest mistake, because the move can be used against the parent in the custody dispute. The court will weigh the move when deciding the custody of the children, and the parent can be seen as having abandoned the children.
The move can also be used in the division of the assets. The court will weigh the move when deciding who keeps the matrimonial home, and the parent who moved out can be seen as having abandoned the home.
What happens when you move out
When you move out of the matrimonial home before the divorce is final, the move can be used against you in the custody dispute. The court will weigh the move when deciding the custody of the children, and the court will consider the impact of the move on the children.
The move can also be used in the division of the assets. The court will weigh the move when deciding who keeps the matrimonial home, and the parent who moved out can be seen as having abandoned the home.
Other common mistakes
The other common mistakes during a divorce are listed below in the order they usually appear in practice.
- Failing to gather the supporting documents. The court will not make an order on bare assertions, and the party must evidence the case.
- Skipping the settlement agreement. The settlement agreement is the document that records the parties’ agreement on the terms of the divorce.
- Starting a new relationship before the divorce is final. The new relationship can be used against the parent in the custody dispute.
- Skipping the tax implications. The transfer of an asset can trigger capital gains tax, and the parties should seek tax advice.
- Letting the dispute escalate. The right path is to engage with the other party and apply for variation where appropriate.
What you should do
The list below gives the practical steps to take during a divorce, in the order they usually appear in practice. Understanding the financial implications of divorce settlements is crucial for a successful transition. Couples need to carefully evaluate their assets and liabilities to ensure a fair division. Additionally, seeking professional advice can provide clarity and help mitigate potential disputes.
- Stay in the matrimonial home until the divorce is final, or until the court has made an order on the custody of the children.
- Gather the supporting documents, including the payslips, the bank statements, and the asset valuations.
- Negotiate the settlement with the other party, including the division of the assets, the maintenance of the children, and the spousal maintenance.
- File the settlement agreement with the court, and apply for the decree of divorce.
What you should not do
The list below gives the practical steps to avoid during a divorce, in the order they usually appear in practice.
- Do not move out of the matrimonial home before the divorce is final, or before the court has made an order on the custody of the children.
- Do not start a new relationship before the divorce is final. The new relationship can be used against the parent in the custody dispute.
- Do not hide assets from the other party. The court will weigh the evidence and decide whether the assets have been hidden.
- Do not post about the divorce on social media. The post can be used against the parent in the custody dispute.
- Do not use the children as messengers. The court will weigh the conduct of the parent and decide whether the parent has put the children in the middle.
The divorce process in South Africa can be complex, often involving various legal requirements that differ based on the circumstances of each case. It is important to seek professional advice to navigate the specificities of the law. Understanding these intricacies can lead to a smoother transition during such a challenging time.
Common Mistakes to Avoid
These are the patterns that leave parties with the wrong outcome.
- Skipping the asset inventory. The assets must be listed in the settlement agreement, and the parties must value them correctly.
- Forgetting the pension interest. The pension interest is usually the largest asset, and the parties must value it correctly.
- Skipping the tax implications. The transfer of an asset can trigger capital gains tax, and the parties should seek tax advice.
- 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 order is granted. The divorce is not final until the decree is granted.
Frequently Asked Questions
What is the biggest mistake during a divorce in South Africa?
The biggest mistake during a divorce in South Africa is moving out of the matrimonial home before the divorce is final. The move can be used against the parent in the custody dispute, and the parent can be seen as having abandoned the children. The matrimonial home is also part of the matrimonial property, and the move can complicate the division of the assets.
Why is moving out the biggest mistake during a divorce?
Moving out of the matrimonial home before the divorce is final is the biggest mistake, because the move can be used against the parent in the custody dispute. The court will weigh the move when deciding the custody of the children, and the parent can be seen as having abandoned the children.
What happens when you move out of the matrimonial home before the divorce?
When you move out of the matrimonial home before the divorce is final, the move can be used against you in the custody dispute. The court will weigh the move when deciding the custody of the children, and the court will consider the impact of the move on the children.
What other common mistakes do people make during a divorce?
Other common mistakes include failing to gather the supporting documents, skipping the settlement agreement, starting a new relationship before the divorce is final, skipping the tax implications, and letting the dispute escalate.
Can a divorce be granted without a court appearance in South Africa?
A divorce can be granted without the appearance of both parties in uncontested matters, where the parties have agreed to the terms of the divorce. In contested matters, the court will usually require the parties to attend the hearing.
Do I need a lawyer during a divorce in South Africa?
A lawyer is not required for an uncontested divorce, but it is strongly recommended. The divorce is a complex legal process, and the parties should seek legal advice to ensure that their interests are protected.
How long does a divorce take in South Africa?
An uncontested divorce usually takes two to six months from the date of the summons. A contested divorce can take six months to more than a year, depending on the complexity of the matter and the court’s roll.
Get help with your divorce. If you need help with a divorce, 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 biggest mistakes during a divorce 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.