1 00:00:00,160 --> 00:00:02,320 Speaker 1: Going to dive straight in today's Legal Talk because I 2 00:00:02,320 --> 00:00:04,600 Speaker 1: suspect we're going to have a lot of listener questions 3 00:00:04,600 --> 00:00:07,800 Speaker 1: in this one. We're talking about divorce. Never an easy 4 00:00:07,840 --> 00:00:11,400 Speaker 1: conversation and of course never an easy decision to implement, 5 00:00:11,480 --> 00:00:14,520 Speaker 1: But when a marriage does come to an end, having 6 00:00:14,560 --> 00:00:17,880 Speaker 1: some understanding of the legal process involved can just take 7 00:00:17,920 --> 00:00:20,200 Speaker 1: a little bit of pressure off what is always going 8 00:00:20,239 --> 00:00:23,079 Speaker 1: to be an incredibly emotional and difficult process, no. 9 00:00:23,000 --> 00:00:25,160 Speaker 2: Matter how amicable the decision might have been. 10 00:00:25,520 --> 00:00:27,800 Speaker 1: And in today's Legal Talk segment, we are looking at 11 00:00:27,840 --> 00:00:31,920 Speaker 1: some of the practical steps involved in initiating divorce proceedings. 12 00:00:32,159 --> 00:00:35,760 Speaker 1: What has to happen, what has to be put into 13 00:00:35,800 --> 00:00:38,559 Speaker 1: motion and from where to start, and what documents you 14 00:00:38,640 --> 00:00:42,680 Speaker 1: need to discussing issues around children and maintenance and property, etc. 15 00:00:43,280 --> 00:00:44,240 Speaker 2: There's a lot to cover. 16 00:00:44,320 --> 00:00:46,000 Speaker 1: We'll do our best to get through some of the 17 00:00:46,000 --> 00:00:48,559 Speaker 1: basics with our guest about as Prela, who is a 18 00:00:48,600 --> 00:00:52,640 Speaker 1: divorce and family law expert at Maurice Phillips Weisenberg. He's 19 00:00:52,680 --> 00:00:55,560 Speaker 1: also the founder of Family Laws, which is South Africa's 20 00:00:55,600 --> 00:00:58,520 Speaker 1: leading blog on family and divorce law, and he is 21 00:00:58,560 --> 00:01:01,160 Speaker 1: the author of the book every One's Guide to divorce 22 00:01:01,200 --> 00:01:04,200 Speaker 1: and separation. But as it's been far too long since 23 00:01:04,240 --> 00:01:06,000 Speaker 1: we had you on the show, it's lovely to welcome 24 00:01:06,040 --> 00:01:07,600 Speaker 1: you back today and thank you so much. 25 00:01:07,480 --> 00:01:08,000 Speaker 2: For your time. 26 00:01:09,120 --> 00:01:10,360 Speaker 3: Thank you for the time, Papa. 27 00:01:10,920 --> 00:01:12,640 Speaker 1: It's our great pleasure to have you with us. And 28 00:01:12,920 --> 00:01:15,399 Speaker 1: the reason for this conversation is actually sparked by a 29 00:01:15,480 --> 00:01:18,160 Speaker 1: listener writing in to say that after years of unhappiness, 30 00:01:18,240 --> 00:01:21,320 Speaker 1: she had finally decided it's time to file for divorce. 31 00:01:21,360 --> 00:01:22,119 Speaker 2: But she said, I'm. 32 00:01:21,959 --> 00:01:25,120 Speaker 1: Embarrassed to say I don't actually know how to file 33 00:01:25,160 --> 00:01:28,120 Speaker 1: for divorce. Could you get someone to explain how you 34 00:01:28,240 --> 00:01:31,840 Speaker 1: begin the process? And I hope that this interview is 35 00:01:31,920 --> 00:01:34,920 Speaker 1: going to provide the clarity you are looking for, and 36 00:01:35,000 --> 00:01:36,959 Speaker 1: we wish you all the best. To the listener asking 37 00:01:37,000 --> 00:01:39,479 Speaker 1: that question, you know who you are, But us let's 38 00:01:39,480 --> 00:01:41,640 Speaker 1: start at the very beginning. As they say, if someone 39 00:01:41,720 --> 00:01:45,360 Speaker 1: has reached the conclusion that it is irrevocable, they need 40 00:01:45,360 --> 00:01:47,680 Speaker 1: to take a step to end their marriage. What is 41 00:01:47,720 --> 00:01:50,640 Speaker 1: the very first step in that process? I mean, I'm 42 00:01:50,640 --> 00:01:55,000 Speaker 1: assuming it must be telling your partner that that is 43 00:01:55,000 --> 00:01:57,360 Speaker 1: your intention, or is that not necessarily the case? 44 00:01:59,400 --> 00:02:03,400 Speaker 3: Well, obviously, yes, I think you know because in every marriage, 45 00:02:04,000 --> 00:02:07,080 Speaker 3: you know, the cornerstone's communication and you know, although there's 46 00:02:07,080 --> 00:02:11,480 Speaker 3: a breakdown, you know, I found that in matters where 47 00:02:11,960 --> 00:02:14,400 Speaker 3: one of the parties just suddenly decided to get avorce 48 00:02:14,520 --> 00:02:17,600 Speaker 3: you know, the other party retaliates, and I think it 49 00:02:17,639 --> 00:02:21,600 Speaker 3: is it should be a discussion before you know, anything happens. 50 00:02:22,560 --> 00:02:25,800 Speaker 1: So hopefully it's a discussion that leads to an amicable 51 00:02:25,840 --> 00:02:28,320 Speaker 1: resolution one way or another. Sure there might be the 52 00:02:28,360 --> 00:02:30,960 Speaker 1: possibility that you agree to try again or to try 53 00:02:30,960 --> 00:02:31,720 Speaker 1: and resolve. 54 00:02:31,400 --> 00:02:33,079 Speaker 2: The issues that have led to that possession. 55 00:02:33,080 --> 00:02:34,960 Speaker 1: But in some cases it is going to be a 56 00:02:34,960 --> 00:02:37,800 Speaker 1: decision that yes, we are going to part ways. But 57 00:02:38,560 --> 00:02:40,960 Speaker 1: as the person writing to me said, we speak so 58 00:02:41,080 --> 00:02:43,960 Speaker 1: much about the divorce rate and about the struggles that 59 00:02:44,000 --> 00:02:46,639 Speaker 1: people have around child maintenance, et cetera. But she didn't 60 00:02:46,680 --> 00:02:49,800 Speaker 1: even know where to start. How does one legally begin 61 00:02:49,880 --> 00:02:50,480 Speaker 1: the process? 62 00:02:51,720 --> 00:02:55,080 Speaker 3: Well, I think the first, the first essential step would 63 00:02:55,080 --> 00:02:58,919 Speaker 3: be to get proper legal advice before you do anything else, 64 00:02:59,200 --> 00:03:03,560 Speaker 3: before moving out, or before stopping payments, or before you know, 65 00:03:03,680 --> 00:03:07,640 Speaker 3: sending that angry email to your spouse, because those decisions 66 00:03:07,639 --> 00:03:11,600 Speaker 3: in the first few weeks can have consequences that can 67 00:03:11,680 --> 00:03:14,720 Speaker 3: last for years. So I would suggest, you know, sit 68 00:03:14,760 --> 00:03:18,160 Speaker 3: down with a family or attorney, understand where you stand, 69 00:03:18,160 --> 00:03:22,400 Speaker 3: and then make a plan so actually, you know, don't 70 00:03:22,440 --> 00:03:25,160 Speaker 3: react respond you. 71 00:03:25,080 --> 00:03:26,520 Speaker 2: Say, long term consequences. 72 00:03:26,560 --> 00:03:28,520 Speaker 1: Can you give some examples, batters of the kind of 73 00:03:28,520 --> 00:03:31,240 Speaker 1: decisions that might seem like a sort of an interim 74 00:03:31,280 --> 00:03:35,520 Speaker 1: step but might actually influence in the long term how 75 00:03:35,560 --> 00:03:36,320 Speaker 1: things are settled. 76 00:03:37,600 --> 00:03:40,840 Speaker 3: You know, you get many instances where people simply just 77 00:03:40,880 --> 00:03:43,520 Speaker 3: want to get out of the marriage and they don't 78 00:03:43,560 --> 00:03:45,760 Speaker 3: care what they take with them out of the marriage. 79 00:03:45,840 --> 00:03:50,480 Speaker 3: And I've seen situations where a woman, for example, would 80 00:03:50,480 --> 00:03:53,480 Speaker 3: look back and say, well, you know, I didn't get 81 00:03:53,480 --> 00:03:57,440 Speaker 3: my fair share. But then it's then it's basically too late. 82 00:03:58,040 --> 00:04:02,400 Speaker 3: So you've got to you know, we can talk so 83 00:04:02,640 --> 00:04:08,600 Speaker 3: much about you know, divorce in general and the principles, 84 00:04:09,520 --> 00:04:12,160 Speaker 3: and there are so many factors at play. You know, 85 00:04:13,000 --> 00:04:16,560 Speaker 3: how you married, where you married in community, out of community, 86 00:04:16,800 --> 00:04:20,479 Speaker 3: with the accrual without the appreal where there are children involved, 87 00:04:20,880 --> 00:04:23,640 Speaker 3: where maintenance come into play. And then you have this 88 00:04:23,760 --> 00:04:27,279 Speaker 3: whole commercial structure big divorces where you have trusts and 89 00:04:27,320 --> 00:04:30,359 Speaker 3: you have companies that you have to unravel. But you know, 90 00:04:30,480 --> 00:04:34,160 Speaker 3: at the end of the day, I think you know, 91 00:04:34,200 --> 00:04:38,360 Speaker 3: one shouldn't take a position too quickly and decide to say, 92 00:04:38,839 --> 00:04:41,080 Speaker 3: for example, you know, I want to be out of 93 00:04:41,120 --> 00:04:43,920 Speaker 3: this marriage as soon as possible, and then not get 94 00:04:43,920 --> 00:04:46,960 Speaker 3: a proper legal advice that might bite you later along 95 00:04:47,000 --> 00:04:47,480 Speaker 3: the lines. 96 00:04:47,720 --> 00:04:52,080 Speaker 1: Obviously, a lot is going to be determined by how 97 00:04:52,360 --> 00:04:55,520 Speaker 1: amicable or non amicable a situation. This is, whether it 98 00:04:55,640 --> 00:04:58,520 Speaker 1: is a divorce that both parties have agreed is necessary, 99 00:04:58,880 --> 00:05:01,320 Speaker 1: and whether you are still on reasonable speaking terms with 100 00:05:01,320 --> 00:05:04,680 Speaker 1: one another. Obviously that in a perfect world, one would 101 00:05:04,720 --> 00:05:06,560 Speaker 1: hope for for that that two adults would make a 102 00:05:06,600 --> 00:05:09,279 Speaker 1: mutual decision and be able to proceed from there with 103 00:05:09,440 --> 00:05:12,400 Speaker 1: cool heads. But that is Unfortunately that's not always the case, 104 00:05:12,400 --> 00:05:14,760 Speaker 1: and I don't I think we can probably safely say 105 00:05:14,800 --> 00:05:18,279 Speaker 1: seldom the case, because people's emotions are involved here. What 106 00:05:18,400 --> 00:05:20,960 Speaker 1: are some of the sort of the big immediate decisions 107 00:05:21,040 --> 00:05:23,400 Speaker 1: that need to be resolved with clear heads, if it 108 00:05:23,440 --> 00:05:28,640 Speaker 1: all possible, any sort of in an early conversation between 109 00:05:28,680 --> 00:05:30,400 Speaker 1: the two parties who are splitting. 110 00:05:31,160 --> 00:05:33,240 Speaker 3: Well, you know, I think I just want to go 111 00:05:33,360 --> 00:05:39,479 Speaker 3: step back. You know, it is so expensive these days 112 00:05:39,560 --> 00:05:44,640 Speaker 3: to divorce. If the divorce is going to be along 113 00:05:44,960 --> 00:05:49,440 Speaker 3: contested rules, where the parties cannot settle. For example, it 114 00:05:49,480 --> 00:05:53,760 Speaker 3: can thank up to four years to finalize, and by 115 00:05:53,800 --> 00:05:56,600 Speaker 3: that time, depending on the assets, you'd have waked up 116 00:05:56,720 --> 00:06:01,039 Speaker 3: millions and millions on legal costs. And I think any 117 00:06:01,120 --> 00:06:06,599 Speaker 3: proper family lawyer will advise clients from the start to 118 00:06:06,720 --> 00:06:11,040 Speaker 3: consider mediation as an option to part in an amicable 119 00:06:11,200 --> 00:06:14,719 Speaker 3: manner because that brings the cost tremendous down and it 120 00:06:14,839 --> 00:06:21,200 Speaker 3: sets a situation where there is less animosity and an 121 00:06:21,240 --> 00:06:29,080 Speaker 3: acrimonia between between the spouses. So the first step when 122 00:06:29,200 --> 00:06:31,640 Speaker 3: one looks at the divorce is to is to make 123 00:06:31,680 --> 00:06:36,039 Speaker 3: that choice both parties to make that choice are you 124 00:06:36,240 --> 00:06:39,240 Speaker 3: going to mediate in a in a proper manner or 125 00:06:39,360 --> 00:06:42,839 Speaker 3: are you going to litigate in the divorce? And we 126 00:06:42,920 --> 00:06:48,039 Speaker 3: see where litigations start, and you know, the sets of 127 00:06:48,080 --> 00:06:52,720 Speaker 3: attorneys become involved, and then the forensic psychologists and the 128 00:06:52,720 --> 00:06:58,720 Speaker 3: industrial psychologists. It's almost like a boiling pot. You know, 129 00:06:58,880 --> 00:07:02,880 Speaker 3: a divorce is almost like relationship. It starts very emotional 130 00:07:03,120 --> 00:07:07,600 Speaker 3: and eventually then you know, it's sort of if there's 131 00:07:07,640 --> 00:07:11,800 Speaker 3: sanity that comes into the equation where you can get 132 00:07:11,800 --> 00:07:14,640 Speaker 3: to a point where you can basically sit down around 133 00:07:14,640 --> 00:07:17,960 Speaker 3: the table, you know, and settle the divorce in an 134 00:07:18,000 --> 00:07:22,440 Speaker 3: amicable manner. So I would say what parties should do 135 00:07:23,080 --> 00:07:26,760 Speaker 3: is to consider mediation from from the start. The problem 136 00:07:26,960 --> 00:07:32,920 Speaker 3: is that during that mediation phase the spouses lean on 137 00:07:32,960 --> 00:07:36,720 Speaker 3: each other's trust to make a full disclosure of assets 138 00:07:36,720 --> 00:07:39,240 Speaker 3: and liabilities. And only when you do, when you have 139 00:07:39,320 --> 00:07:43,360 Speaker 3: a full frame disclosure of assets and liabilities, and depending 140 00:07:43,360 --> 00:07:46,280 Speaker 3: on how you marrit then you can do division of 141 00:07:46,320 --> 00:07:52,000 Speaker 3: the assets. But unfortunately sometimes during the mediation process all 142 00:07:52,040 --> 00:07:56,280 Speaker 3: those assets are disclosed, and in the court process where 143 00:07:56,520 --> 00:07:59,480 Speaker 3: you run through the contested lines of the divorce, well 144 00:07:59,520 --> 00:08:02,800 Speaker 3: there you've got mechanisms where you can force discovery of 145 00:08:02,920 --> 00:08:05,200 Speaker 3: documents and issues have femis and so on. 146 00:08:06,880 --> 00:08:09,760 Speaker 1: That's a very important, several very important points there. So 147 00:08:09,800 --> 00:08:13,080 Speaker 1: firstly the emphasis on try mediation if at all possible. 148 00:08:13,120 --> 00:08:15,720 Speaker 1: It's going to be hopefully shorter in length and duration 149 00:08:15,800 --> 00:08:19,240 Speaker 1: and less expensive than going the rout of litigation. The 150 00:08:19,280 --> 00:08:22,400 Speaker 1: point about the honesty around disclosure of assets and liability 151 00:08:22,480 --> 00:08:25,280 Speaker 1: is also very very important. That is one of our 152 00:08:25,320 --> 00:08:28,640 Speaker 1: listeners immediately asking what happens if only one party in 153 00:08:28,680 --> 00:08:31,040 Speaker 1: the marriage wants the divorce and the other does not 154 00:08:31,560 --> 00:08:34,240 Speaker 1: want to agree to it. What is the way forward 155 00:08:34,240 --> 00:08:34,680 Speaker 1: from there. 156 00:08:36,040 --> 00:08:39,960 Speaker 3: Well, we also see that quite often we see situations 157 00:08:39,960 --> 00:08:42,720 Speaker 3: where one party don't want to want a divorce, but 158 00:08:43,280 --> 00:08:47,360 Speaker 3: you know, courts will not keep people together. A court 159 00:08:47,440 --> 00:08:51,440 Speaker 3: will ultimately pronounce on that divorce. And you know, we 160 00:08:51,520 --> 00:08:55,320 Speaker 3: have no fault situation when it comes to the divorce 161 00:08:55,360 --> 00:09:00,000 Speaker 3: in South Africa. So when one party, you know, please 162 00:09:00,280 --> 00:09:02,760 Speaker 3: for a breakdown of the marriage, well then then it's 163 00:09:02,840 --> 00:09:05,320 Speaker 3: very much the end of it. But we see matthis 164 00:09:05,360 --> 00:09:08,040 Speaker 3: that gets dragged on four years because one of the 165 00:09:08,080 --> 00:09:11,200 Speaker 3: parties do not want to get avorce and ultimately, in 166 00:09:11,240 --> 00:09:15,800 Speaker 3: four years of time passing and a huge legal balls, 167 00:09:16,480 --> 00:09:21,040 Speaker 3: the people will get divorced. And in those situations, I 168 00:09:21,040 --> 00:09:24,559 Speaker 3: would suggest that where one party does not want to 169 00:09:25,280 --> 00:09:30,480 Speaker 3: get AVORCE, such a person should seek you know, professional 170 00:09:30,520 --> 00:09:32,640 Speaker 3: help from a mental health care practitioner. 171 00:09:33,600 --> 00:09:37,680 Speaker 1: Okay, that is you mentioned the term that we don't have, 172 00:09:38,000 --> 00:09:39,920 Speaker 1: that we have a no fault view on divorce in 173 00:09:39,960 --> 00:09:41,520 Speaker 1: South Africa. I think we maybe just need to take 174 00:09:41,520 --> 00:09:43,559 Speaker 1: a step back there and elaborate a little bit because 175 00:09:43,600 --> 00:09:46,679 Speaker 1: this is something that a lot of people have misconceptions about, 176 00:09:46,720 --> 00:09:49,440 Speaker 1: I think primarily based on watching a lot of American 177 00:09:49,480 --> 00:09:52,959 Speaker 1: television for example, that courts are going to award punitive 178 00:09:53,040 --> 00:09:55,679 Speaker 1: damages if a spouse had an affair or something like that. 179 00:09:55,720 --> 00:09:57,760 Speaker 1: Do you want to explain what you mean when you 180 00:09:57,760 --> 00:09:59,719 Speaker 1: say South Africa takes a no fault. 181 00:09:59,480 --> 00:10:03,880 Speaker 3: View on the well, I have to just qualify that. 182 00:10:04,559 --> 00:10:08,280 Speaker 3: What it means is you don't have to prove that 183 00:10:08,360 --> 00:10:11,280 Speaker 3: your spouse did anything wrong to get a divorce. The 184 00:10:11,360 --> 00:10:14,719 Speaker 3: only ground for divorce in South Africa is the irretrieval 185 00:10:14,760 --> 00:10:17,680 Speaker 3: will break down of the marriage. So if the relationship 186 00:10:17,800 --> 00:10:21,280 Speaker 3: is broken down to the point where there's no reasonable 187 00:10:21,720 --> 00:10:26,480 Speaker 3: prospect of restoring it, that's sufficient. But I've seen in 188 00:10:26,520 --> 00:10:32,800 Speaker 3: a recent case law that conduct like repetitive adultery or 189 00:10:32,840 --> 00:10:36,840 Speaker 3: abuse may still be irrelevant, particularly when it comes to 190 00:10:37,120 --> 00:10:41,000 Speaker 3: what we call a forfeiture of benefits or costs in 191 00:10:41,120 --> 00:10:46,439 Speaker 3: the divorce. But you don't need to prove fault just 192 00:10:46,640 --> 00:10:51,000 Speaker 3: to get the divorce itself. Granted. Now, when we talk forfeiture, 193 00:10:51,040 --> 00:10:56,600 Speaker 3: for example, there's were a couple of cases later recently 194 00:10:56,679 --> 00:11:00,000 Speaker 3: where judges found that the conduct of the one part 195 00:11:00,000 --> 00:11:05,120 Speaker 3: party was so great that that party was excluded to 196 00:11:06,000 --> 00:11:09,880 Speaker 3: share the assets of the other party based on principle 197 00:11:10,240 --> 00:11:14,400 Speaker 3: that that party will unduly benefit in this state, and 198 00:11:14,720 --> 00:11:22,800 Speaker 3: we see it a lot in matters where in community 199 00:11:23,679 --> 00:11:29,040 Speaker 3: of property marriages and with the cruel marriages where you 200 00:11:29,120 --> 00:11:32,360 Speaker 3: can claim this forfeiture clause. But now just going a 201 00:11:32,440 --> 00:11:38,080 Speaker 3: first step forward. In twenty twenty three, there was the 202 00:11:38,120 --> 00:11:44,280 Speaker 3: Constitutional Court decision that dealt with marriages that were marriages 203 00:11:44,960 --> 00:11:47,680 Speaker 3: out of community of property without the accrual. So what 204 00:11:47,800 --> 00:11:49,960 Speaker 3: is yours is yours and when you walk out of 205 00:11:49,960 --> 00:11:53,200 Speaker 3: the marriage, you only have a spousal claim when from 206 00:11:53,200 --> 00:11:59,040 Speaker 3: the wife's perspective, and the court Constitutional Court found that 207 00:11:59,040 --> 00:12:04,800 Speaker 3: that was unconstitutional and brought back the old regime that 208 00:12:04,880 --> 00:12:08,439 Speaker 3: we had before one Overmber nineteen eighty four, where you 209 00:12:08,559 --> 00:12:13,199 Speaker 3: now effectively can claim for a redistribution of assets. And 210 00:12:13,520 --> 00:12:16,760 Speaker 3: in order to claim that redistribution, you've got to show 211 00:12:16,800 --> 00:12:20,520 Speaker 3: direct inputs into the manage that you made or indirect 212 00:12:20,800 --> 00:12:24,920 Speaker 3: an indirect people example, home maker looking after the children 213 00:12:25,000 --> 00:12:30,920 Speaker 3: while her husband is working a long long span marriage, parties, divorce, 214 00:12:31,000 --> 00:12:33,840 Speaker 3: and all that the wife had in the past until 215 00:12:33,880 --> 00:12:37,200 Speaker 3: a few years ago was a maintenance claim. Now she's 216 00:12:37,200 --> 00:12:40,480 Speaker 3: got a redistribution claim and it is there to assist 217 00:12:40,600 --> 00:12:42,760 Speaker 3: people in those scenarios. 218 00:12:42,800 --> 00:12:47,760 Speaker 1: Fantastic, Okay, so important and that this raises again the 219 00:12:48,120 --> 00:12:50,640 Speaker 1: issue of how important it is to know going into 220 00:12:50,720 --> 00:12:53,960 Speaker 1: marriage about the different forms of marriage and to have 221 00:12:54,000 --> 00:12:56,920 Speaker 1: a clear head about the difference between in an out 222 00:12:56,960 --> 00:12:59,480 Speaker 1: of community of property a cruel clauses, et cetera. And 223 00:12:59,559 --> 00:13:01,600 Speaker 1: to our find what you want and go in with 224 00:13:01,679 --> 00:13:04,600 Speaker 1: eyes wide open before you sign on the dotted line, 225 00:13:04,600 --> 00:13:07,440 Speaker 1: because just remind us what happens if you don't sign 226 00:13:07,480 --> 00:13:11,080 Speaker 1: any kind of anti nuptial contract and have that conversation beforehand. 227 00:13:11,160 --> 00:13:14,920 Speaker 1: What does the law then determine to be your marriage contract. 228 00:13:16,200 --> 00:13:19,760 Speaker 3: Well, then by default you're married married in community of property, 229 00:13:19,800 --> 00:13:21,920 Speaker 3: and you know, the court doesn't really have it it's 230 00:13:22,000 --> 00:13:25,720 Speaker 3: creation unless you have this forfeiture claim to split the 231 00:13:26,040 --> 00:13:29,239 Speaker 3: estate in half, and that that is that's all at 232 00:13:29,480 --> 00:13:34,079 Speaker 3: the net assets. So for example, one more calculate what 233 00:13:34,480 --> 00:13:37,559 Speaker 3: is a net asset of the estate assets minus liabilities, 234 00:13:37,559 --> 00:13:40,840 Speaker 3: and then that gets split. And when people can't agree 235 00:13:40,840 --> 00:13:43,440 Speaker 3: on that split, one can go a step further and 236 00:13:43,480 --> 00:13:45,600 Speaker 3: a point what we call a receiver, and that is 237 00:13:45,640 --> 00:13:49,520 Speaker 3: some slightly liquid data basically come in, divide the estate 238 00:13:49,600 --> 00:13:52,800 Speaker 3: in terms of a court order and give each party's 239 00:13:53,040 --> 00:13:58,439 Speaker 3: a share. Okay, so it's not you know, I think 240 00:13:58,520 --> 00:14:06,480 Speaker 3: more people pick of demographics and because of money. There 241 00:14:06,520 --> 00:14:09,960 Speaker 3: are many people in South Africa married in community of 242 00:14:10,080 --> 00:14:14,800 Speaker 3: property by default, which is a problem because by you know, 243 00:14:14,840 --> 00:14:18,120 Speaker 3: for example, if one of the parties gets sequestrated, then 244 00:14:18,400 --> 00:14:21,560 Speaker 3: the other parties of states also in trouble because it's 245 00:14:21,560 --> 00:14:26,520 Speaker 3: one estate. So we're split in the sense of out 246 00:14:26,560 --> 00:14:29,640 Speaker 3: of community marriage. Whether it's now cruel or not a cruel, 247 00:14:30,640 --> 00:14:34,520 Speaker 3: those states then stay separate, completely separate. 248 00:14:35,600 --> 00:14:39,720 Speaker 1: Yeah, devil, just ask you about the timing of those contracts. 249 00:14:40,120 --> 00:14:42,080 Speaker 1: I'm a writer in saying that you need to if 250 00:14:42,080 --> 00:14:45,160 Speaker 1: you are choosing to sign an anti nuptial contract and 251 00:14:45,800 --> 00:14:48,440 Speaker 1: to be married out of community of property, you've got 252 00:14:48,440 --> 00:14:50,680 Speaker 1: to sign that before the marriage is registered. 253 00:14:50,720 --> 00:14:51,200 Speaker 2: Is that correct? 254 00:14:51,240 --> 00:14:53,640 Speaker 1: If you don't do so, the court, the court will 255 00:14:53,640 --> 00:14:56,600 Speaker 1: by default see you as being married in community of 256 00:14:56,600 --> 00:14:59,240 Speaker 1: property and you would then have to undertake a further 257 00:14:59,320 --> 00:15:00,600 Speaker 1: legal process to change it. 258 00:15:00,640 --> 00:15:01,320 Speaker 2: Is that correct? 259 00:15:02,720 --> 00:15:07,920 Speaker 3: That's correct. You have to sign in front of the notary, 260 00:15:08,440 --> 00:15:10,920 Speaker 3: either by way of a power of attorney to a 261 00:15:11,000 --> 00:15:14,960 Speaker 3: third party yourself before the marriage, so the anti natural 262 00:15:15,000 --> 00:15:19,000 Speaker 3: contract can be registered after the marriage. But what we 263 00:15:19,080 --> 00:15:23,040 Speaker 3: see a lot is that notaries, for example, do not 264 00:15:23,200 --> 00:15:32,240 Speaker 3: discuss the ramifications of the situation or the way people marry. Notaries, 265 00:15:32,280 --> 00:15:35,320 Speaker 3: for example, do not tell the parties. You can go 266 00:15:35,520 --> 00:15:40,320 Speaker 3: get external advice on what you're going to sign. Now 267 00:15:40,320 --> 00:15:43,440 Speaker 3: that's a very difficult situation for people healing married, because 268 00:15:43,480 --> 00:15:46,200 Speaker 3: now you've got this conflict before you get married on 269 00:15:48,200 --> 00:15:50,880 Speaker 3: the mattertal or a gene. But I think people should 270 00:15:50,960 --> 00:15:55,000 Speaker 3: realize that that is an adult discussion and it can 271 00:15:55,000 --> 00:15:58,840 Speaker 3: hang long term implications for people, and it's very important, 272 00:15:58,880 --> 00:16:02,400 Speaker 3: and sometimes people leave it until the day before the marriage, 273 00:16:02,440 --> 00:16:05,240 Speaker 3: you know, and it's something that you've you've got to 274 00:16:05,280 --> 00:16:08,280 Speaker 3: do long before the marriage or the wedding day. 275 00:16:09,760 --> 00:16:13,280 Speaker 1: We're in conversation with family lawyer Brent battis Preller, who 276 00:16:13,360 --> 00:16:15,880 Speaker 1: is a divorce and family law expert with Maurice Phillips 277 00:16:15,880 --> 00:16:20,320 Speaker 1: Weisenberg and taking your questions on what'sapp o seven two five. 278 00:16:20,280 --> 00:16:23,120 Speaker 2: Six seven one five six seven. 279 00:16:23,120 --> 00:16:26,960 Speaker 1: Interesting comment on email from Tommy says, I have recently 280 00:16:27,000 --> 00:16:30,840 Speaker 1: seen several people asking questions on Facebook about so called 281 00:16:30,960 --> 00:16:35,240 Speaker 1: DIY divorces, asking for advice from strangers online. 282 00:16:35,600 --> 00:16:36,600 Speaker 2: And his question is have. 283 00:16:36,600 --> 00:16:40,320 Speaker 1: You ever seen a successful DIY divorce? Will be bad 284 00:16:40,320 --> 00:16:42,240 Speaker 1: as you don't see them, because a DIY divorce by 285 00:16:42,240 --> 00:16:45,400 Speaker 1: implication isn't coming to a divorce lawyer. But any comments 286 00:16:45,440 --> 00:16:49,360 Speaker 1: on whether it is possible in any circumstances to safely 287 00:16:49,400 --> 00:16:51,680 Speaker 1: get divorced without getting lawyers. 288 00:16:51,360 --> 00:16:55,160 Speaker 3: Involved, there is, But I would say for that's for 289 00:16:55,280 --> 00:16:58,360 Speaker 3: marriages where there's no children and you know, parties already 290 00:16:58,400 --> 00:17:02,760 Speaker 3: decided what they want to devise, and there are providers 291 00:17:02,800 --> 00:17:05,960 Speaker 3: out there. I think it's Ey Divorce. It's one of 292 00:17:06,240 --> 00:17:08,320 Speaker 3: one of the companies and a few other companies that 293 00:17:09,080 --> 00:17:13,000 Speaker 3: basically create the documents for people and then they go 294 00:17:13,080 --> 00:17:15,880 Speaker 3: to court and they do it if you know, meaning 295 00:17:15,960 --> 00:17:18,879 Speaker 3: DI why they do their own divorce. In fact, you 296 00:17:18,880 --> 00:17:21,119 Speaker 3: can also go to the regional courts of the MAGI 297 00:17:21,200 --> 00:17:24,200 Speaker 3: straight court and obtain the forms then and you won't 298 00:17:24,200 --> 00:17:27,320 Speaker 3: pay for it. What you will pay for will basically 299 00:17:27,320 --> 00:17:29,920 Speaker 3: be the share of fee and the shriff will serve 300 00:17:30,000 --> 00:17:32,240 Speaker 3: the papers. But I would say you've got to limit 301 00:17:32,840 --> 00:17:39,080 Speaker 3: those for you know, a divorce that's plainly straightforward, no 302 00:17:39,880 --> 00:17:45,400 Speaker 3: real assets, no properties involved, and obviously no children involved, 303 00:17:45,440 --> 00:17:49,360 Speaker 3: because you know they sometimes you need some input from 304 00:17:50,480 --> 00:17:53,680 Speaker 3: some expert or the office of the family Advocate will 305 00:17:53,720 --> 00:17:55,720 Speaker 3: have to do an investigation to see what is in 306 00:17:55,760 --> 00:17:58,840 Speaker 3: the best interest of the children, et cetera. One thing 307 00:17:58,880 --> 00:18:01,600 Speaker 3: that I left out and I don't know what you're 308 00:18:01,640 --> 00:18:06,160 Speaker 3: going to ask me is a situation where wife, for example, 309 00:18:06,320 --> 00:18:09,560 Speaker 3: is a homemaker, doesn't have money, husband controls all the 310 00:18:09,640 --> 00:18:14,320 Speaker 3: finances and their assets, and the's coheresive control and financial abuse. Now, 311 00:18:14,760 --> 00:18:17,880 Speaker 3: our law has a mechanism called a rule forty three 312 00:18:17,960 --> 00:18:21,880 Speaker 3: applications and I court and rule fifty eight in the 313 00:18:21,920 --> 00:18:26,919 Speaker 3: regional courts. And in terms of that rules, you can 314 00:18:27,040 --> 00:18:31,960 Speaker 3: apply for maintenance pending the finalization of the divorce, and 315 00:18:32,000 --> 00:18:34,959 Speaker 3: you can also ask for a contribution to your legal 316 00:18:35,119 --> 00:18:39,920 Speaker 3: costs in that process. So divorce is actually it's quite strange. 317 00:18:40,000 --> 00:18:43,080 Speaker 3: It's the only action that you can institute in South 318 00:18:43,080 --> 00:18:46,400 Speaker 3: African law where you can ask the defendant against who 319 00:18:46,440 --> 00:18:49,960 Speaker 3: you act or the plaintiff to view the defendant to 320 00:18:50,520 --> 00:18:55,080 Speaker 3: fund your legal expenses. And the basis for that is 321 00:18:55,080 --> 00:19:01,119 Speaker 3: that contribution rests on the husband's responsibility to maintain the wife. 322 00:19:01,160 --> 00:19:04,080 Speaker 3: It's part of his maintenance obligations. And there are cought 323 00:19:04,920 --> 00:19:07,960 Speaker 3: judgments that say, you know, there should be an equality 324 00:19:08,000 --> 00:19:12,560 Speaker 3: of arms between the parties and it's discriminatory for a 325 00:19:12,600 --> 00:19:15,040 Speaker 3: poor wife with no money to fight a husband that 326 00:19:15,119 --> 00:19:16,040 Speaker 3: controls the purse. 327 00:19:17,240 --> 00:19:19,520 Speaker 1: So you said a rule forty three application in the 328 00:19:19,560 --> 00:19:22,240 Speaker 1: High court or a rule fifty eight in the regional court. 329 00:19:22,280 --> 00:19:24,640 Speaker 1: So those are maybe numbers to jut down if you're 330 00:19:24,640 --> 00:19:25,400 Speaker 1: in that position. 331 00:19:25,800 --> 00:19:27,199 Speaker 2: I mean, but we thank you. 332 00:19:27,240 --> 00:19:31,160 Speaker 1: We've skated over the very sort of baby steps into 333 00:19:31,200 --> 00:19:33,520 Speaker 1: the conversation today, and perhaps we need to schedule a 334 00:19:33,560 --> 00:19:35,399 Speaker 1: follow up to go a bit deeper into the issues 335 00:19:35,440 --> 00:19:39,480 Speaker 1: around parenting plans, et cetera. But just in conclusion for 336 00:19:39,560 --> 00:19:42,240 Speaker 1: somebody who is contemplating this, I mean, you've said, the 337 00:19:42,320 --> 00:19:46,000 Speaker 1: conversation with your spouse, if it is possible to have that. Obviously, 338 00:19:46,040 --> 00:19:48,080 Speaker 1: every relationship is different, and we know there are some 339 00:19:48,240 --> 00:19:52,160 Speaker 1: circumstances where that conversation might be difficult, but the conversation 340 00:19:52,280 --> 00:19:55,240 Speaker 1: with the spouse, the attempt at mediation is a vaaliuable 341 00:19:55,240 --> 00:19:57,600 Speaker 1: thing to consider. Last thing to ask is around the 342 00:19:57,600 --> 00:20:00,199 Speaker 1: sort of documentation that you need to start getting in 343 00:20:00,320 --> 00:20:03,520 Speaker 1: order to begin a divorce proceeding. Are there any particular 344 00:20:04,000 --> 00:20:06,280 Speaker 1: forms that need to be filled out or sort of 345 00:20:06,400 --> 00:20:09,159 Speaker 1: declarations that have got to be made at particular officers 346 00:20:09,200 --> 00:20:10,480 Speaker 1: to set the process in motion. 347 00:20:11,800 --> 00:20:16,000 Speaker 3: Well, if you attempt to Well, if you start the process, 348 00:20:16,040 --> 00:20:18,520 Speaker 3: obviously you have to issue a summon support the balls 349 00:20:18,560 --> 00:20:21,680 Speaker 3: that goes with a parenting plan and in the High 350 00:20:21,760 --> 00:20:25,080 Speaker 3: Court with a notice for be calling terms through forty 351 00:20:25,160 --> 00:20:27,720 Speaker 3: one A, which is a notice that says what you 352 00:20:27,840 --> 00:20:31,160 Speaker 3: mediate or not, and then you know you're proposed parenting plan. 353 00:20:31,800 --> 00:20:34,680 Speaker 3: And after a period of ten days, the defendant will 354 00:20:34,760 --> 00:20:37,680 Speaker 3: usually file these notice of defense and then twenty days 355 00:20:37,680 --> 00:20:41,400 Speaker 3: thereafter it will be a counterclaim and then after that 356 00:20:41,480 --> 00:20:44,000 Speaker 3: it would be a plee to the counterclaim and then 357 00:20:44,040 --> 00:20:46,320 Speaker 3: you go into the discovery process. So to come back 358 00:20:46,320 --> 00:20:50,199 Speaker 3: to your question, you have to gather as much financial 359 00:20:50,600 --> 00:20:54,760 Speaker 3: evidence as possible and information as possible. You know, if 360 00:20:54,760 --> 00:20:58,879 Speaker 3: you want to go down that route and lower the 361 00:20:58,960 --> 00:21:02,199 Speaker 3: conflict because there are children involved, you're still going to 362 00:21:02,240 --> 00:21:05,600 Speaker 3: copeare and forward. And the tragic thing we see as 363 00:21:05,640 --> 00:21:09,359 Speaker 3: family lawyers are parents fighting to such an extent that 364 00:21:09,440 --> 00:21:12,359 Speaker 3: it flows down to the children and they are in 365 00:21:12,400 --> 00:21:15,639 Speaker 3: the middle of this fight that they haven't chosen. And 366 00:21:16,280 --> 00:21:19,800 Speaker 3: that's sad, that's really really sad, and. 367 00:21:19,800 --> 00:21:22,880 Speaker 1: It has long term consequences for those children as well. Absolutely, 368 00:21:22,880 --> 00:21:24,880 Speaker 1: I'm so glad you highlighted that Bati is thank you. 369 00:21:24,960 --> 00:21:25,840 Speaker 2: We have to wrap there. 370 00:21:25,840 --> 00:21:27,280 Speaker 1: The last thing I want to just ask you is 371 00:21:27,320 --> 00:21:30,600 Speaker 1: if listeners would like to seek further advice. We've mentioned 372 00:21:30,640 --> 00:21:33,680 Speaker 1: your book Everyone's Guide to Divorce and Separation, but won't 373 00:21:33,680 --> 00:21:36,560 Speaker 1: you just share where they can find your family law's 374 00:21:36,560 --> 00:21:37,600 Speaker 1: blog for more information? 375 00:21:37,720 --> 00:21:41,600 Speaker 3: Batters Yeah, family, it's just family laws dot seo dot 376 00:21:41,680 --> 00:21:44,240 Speaker 3: set and there's another one divorce laws dot seo. I'd 377 00:21:44,280 --> 00:21:47,639 Speaker 3: say they both are very comprehensive family laws, these deals 378 00:21:47,640 --> 00:21:50,800 Speaker 3: with all the new judgments coming out, and just lastly, 379 00:21:50,840 --> 00:21:53,359 Speaker 3: I don't know what take that couple of time for 380 00:21:53,520 --> 00:21:56,560 Speaker 3: unmarried couples. There were recently a case that they can 381 00:21:57,440 --> 00:21:59,520 Speaker 3: from format. There was a case in the cap I 382 00:21:59,680 --> 00:22:05,120 Speaker 3: court where unmarried couples can claim intra maintenance. But that's 383 00:22:05,160 --> 00:22:06,920 Speaker 3: that's that's all another discussion. 384 00:22:06,960 --> 00:22:08,960 Speaker 1: Okay, I'm bringing you straight back to my producer to 385 00:22:08,960 --> 00:22:12,160 Speaker 1: have a conversation about scheduling that conversation, battist, but thank 386 00:22:12,200 --> 00:22:14,240 Speaker 1: you as always for your help and keep well. 387 00:22:14,119 --> 00:22:16,400 Speaker 3: Please, that's a pleasure. Thank you very much. 388 00:22:16,440 --> 00:22:19,320 Speaker 1: Glad to have you with us. Battus Prella from Morris 389 00:22:19,320 --> 00:22:20,240 Speaker 1: Phillips Weisenberg