Divorce is a complex and emotional process, often surrounded by misinformation that can lead to unnecessary anxiety. In South Africa, the legal framework governing divorce is clear, yet divorce myths about the process continue to persist. Let’s unpack and debunk some of the most common misconceptions about divorce in the country.
Myth 1: Divorce Always Requires a Lengthy Court Battle
One of the most common divorce myths is that divorce proceedings automatically involve a drawn-out court battle. Many assume they’ll spend years in conflict, racking up legal fees.
The Reality:
In South Africa, not all divorces are contested. If both parties can agree on key issues such as asset division, child custody, and maintenance, they can proceed with an uncontested divorce. This is typically faster, more cost-effective, and less stressful. In fact, uncontested divorces can often be finalised in a matter of weeks, especially if no minor children are involved.
Contested divorces do take longer due to court proceedings and the need to resolve disputes, but these cases are less common than people think.
Myth 2: The Mother Always Gets Custody of the Children
It’s widely believed that South African courts automatically favour mothers in custody disputes, leaving fathers with limited access to their children.
The Reality:
South African law prioritises the best interests of the child. The Children’s Act of 2005 ensures that custody (now referred to as care) and access (contact) arrangements are based on what will provide the child with stability, safety, and support.
Both parents are considered equal in the eyes of the law, and courts often favour joint custody arrangements if they benefit the child. Fathers who demonstrate active involvement and a commitment to their child’s welfare have as much chance as mothers to secure significant caregiving roles.
Myth 3: You Need Your Spouse’s Consent to Divorce
Some people believe that a spouse can prevent the divorce from proceeding by simply refusing to agree to it.
The Reality:
In South Africa, you do not need your spouse’s consent to get divorced. South African law recognises irretrievable breakdown of the marriage as a sufficient ground for divorce.
If one spouse refuses to participate in the proceedings, the court can still grant a divorce in their absence. While it’s easier if both parties cooperate, one partner’s unwillingness cannot legally block the process.
Myth 4: Divorce Means a 50/50 Split of Assets
Another widespread misconception is that all divorces result in assets being divided equally between the spouses.
The Reality:
Asset division depends on the marital regime under which the couple was married:
- In Community of Property: Assets and liabilities are shared equally, meaning a 50/50 split applies.
- Out of Community of Property (without accrual): Each spouse retains the assets and liabilities they brought into or acquired during the marriage.
- Out of Community of Property (with accrual): The growth in each spouse’s estate during the marriage is shared equitably, unless excluded by antenuptial agreement.
Understanding your marital contract is key to determining how assets will be divided.
Myth 5: Only Men Pay Spousal Maintenance
It’s often assumed that only men are required to pay maintenance after a divorce.
The Reality:
Spousal maintenance is gender-neutral in South African law. Maintenance obligations depend on the financial needs of one spouse and the ability of the other to pay. If a wife is financially independent, she may not be entitled to maintenance, while a husband in need of financial support can apply for it.
The court examines factors such as earning capacity, age, health, and the standard of living during the marriage to make a fair decision.
Myth 6: Adultery Automatically Affects Divorce Settlements
Many people think that if adultery is involved, it guarantees the guilty party will face financial penalties or lose custody of their children.
The Reality:
South Africa follows a no-fault divorce system, meaning adultery does not directly impact the division of assets or custody arrangements. While adultery can contribute to the breakdown of a marriage, the court focuses on practical matters like finances, child welfare, and equitable asset division rather than moral blame.
Myth 7: Hiring a Lawyer Is Always Expensive
There’s a belief that legal fees for divorce are unaffordable, leaving some people hesitant to seek professional help.
The Reality:
While contested divorces can be costly, uncontested divorces are relatively affordable, and some law firms offer fixed-fee packages. Alternatively, couples with limited resources can approach the Legal Aid Board, which provides assistance to those who meet certain financial criteria.
Hiring a lawyer is not always required, especially for simple, uncontested divorces, but professional advice can help ensure a fair and efficient outcome.
Final Thoughts on Divorce Myths
Divorce is never an easy journey, but being armed with accurate information can make the process less daunting. South African law is designed to prioritise fairness and the welfare of any children involved, offering multiple pathways for couples to navigate separation with dignity.
By debunking these divorce myths, individuals can approach divorce with a clearer understanding of their rights, responsibilities, and options. Whether through amicable negotiation or legal intervention, the key to a smoother process lies in preparation, communication, and seeking expert advice when needed.
