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About Divorce

HOW DO I GET A DIVORCE?

  • Divorce starts by a party issuing summons in the High or Regional Court.
  • You need a signed Settlement Agreement to receive your final Divorce order.
  • Getting there entails Mediation or Litigation.
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The difference between A Contested & an Uncontested Divorce

In a contested divorce the parties will dispute one or more of the following factors:
  • The grounds of divorce alleged by the party initiating divorce proceedings, for example, that the marriage has not broken down irretrievably;
  • Who the primary care giver of the children should be;
  • The division of the matrimonial property.
  • Contested divorces can take more than one day in court and, if the High court, the legal fees can very costly, usually entail multiple Court appearances which dramatically increase the cost to each of the Parties.
Mediation is an alternative process to the recently used traditional court processes.

Benefits of Mediation

Mediation is constructive, cost-effective and a far cheaper process than litigation.

Money conflict and children’s matters make mom’s and dad’s reach out to our learned team to assist you in avoiding the “Fire zone”. We apply our minds to your family’s requirements with a select team of experts and offer guidance in the best interest of the child;
navigating our team by using the voice of the child session(s) to structure a workable parenting plan for effective co-parenting. The time spent in mediation can be reduced if you and your spouse are able to come to agreements prior to mediation, or at the least, narrow down your options to a few workable ones. The hourly rates are usually less than attorney’s rates and the parties get the advantage of a Parenting Plan and Voice of the Child feedback within their Mediated divorce.
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Mediation is a quicker process and reduces the Length of Court Proceedings

Due to open communication not being procedurally delayed by the Court congestion and reported overloaded judicial officers and clerks, couples who selected Mediation felt satisfied with the agreements they had reached and both walked away feeling that they had gotten what they had wanted under the circumstances of each unique case.
Litigation is an extremely time consuming process and the courts are so overtaxed that it may take years for a matter to be heard and to reach a conclusion. The court process is also rigid and set by precise rules, whereas mediation is a flexible, more informal process that can be tailored to the parties’ needs.

Mediation improves communication and mindfullness

I would say that litigation exacerbates the trauma of dispute and it fuels animosity and alienation between people. Mediation empowers parties to make decisions for themselves and to turn conflict into a positive process.

Mediation empowers you

you make the choices,not a judge or litigant.Mediation is about hearing about the parties’ experience, expectations, hopes and wishes and can be as detailed and inclusive as the parties choose it to be.

Mediation is flexible, with less emotional turmoil

Mediation can be attempted before, during or after litigation. Mediation can be resumed at any time.Family professionals can be consulted. Mediation sessions may be formal or informal and can take place at the mediators office during the day,evenings or weekends. Divorce does not ruin our families, overwhelming conflict dealt with improperly ruins families and communities. Mediation is not emotionally draining, it is uplifting as it is a solution based approach.

Sessions are about 90 minutes long and three – four sessions should be set aside to finalise your mediation.

Improves Communication between Ex-spouses.

The responsible and mature approach to face the conflict in a safe and unbiased fire zone is already a cost friendly environment as the parties want to move on amicably.

Duration of the Mediation process

The length of mediation depends on what issues have been agreed to prior to mediation and those issues that need to be addressed during mediation. Also, the amount of time spent in mediation is contingent upon you and your spouse's willingness to come to agreements that are equitable for the both of you and your willingness to do what is in the best interests of your children. The time spent in mediation can be reduced if you and your spouse are able to come to agreements prior to mediation, or at the least, narrow down your options to a few workable ones. However, if you and your spouse are not able to discuss your divorce outside of mediation, it is strongly recommended that you avoid it at all costs. When couples try to work out issues on their own and it leads to arguments and "drawing lines in the sand", it makes mediation more difficult and time consuming.

On average, pre-decree divorce mediation can be completed in 4-10 sessions. Again, how long it takes really depends on what if any communication there is between the divorcing couples and their level of animosity for each other. If either one of the spouses is unwilling to budge from their certain position on a divorce issues, mediation may not be an option for them and they may have to litigate in court. Once this happens, communication is shut down and the fight begins.

On our Packages page the average mediated case costs R20 000,00 and is settled in 90 days. In turn, the average litigated case in the courts cost R250 000.00 and took 3 years to settle. Keep in mind, the litigated cases led to more spite and frustration between the divorcing couples, usually leading to a loss/lose situation for both. Not many people walk away from a litigated divorce feeling satisfied.

On average 3 Mediations are required to finalise the Settlement and prescribed Parenting Plan.

Enhance community involvement in the dispute resolution process

The result of a supportive environment to provide solutions creates a sense of self significance for everyone involved embracing their role as family members in the community versus scolding and labelled each other.

Encourages Confidentiality

Litigated divorce is in the public domain and Mediation is in the private office of an unbiased Mediator

Facilitate access to justice

Provide better co-parenting skills to the community

Our facility assists parents with development and support.

Dealing with the issue’s has less impact on the children than fighting it in a public domain.

Giving feedback to the children regarding the Parenting Plan forward already empowers the children to the adjustment of the divorce.

How to apply for Mediation

  • Agree to Mediate
  • Identify issues to be addressed in mediation
  • Negotiate
  • Calculate
  • Implement
  • Follow up and through the process
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THE LEGAL GROUNDS FOR DIVORCE

In South Africa, there are only two grounds for divorce:
1. Irretrievable breakdown of marriage; and
2. Mental illness or continued unconsciousness of one of the spouses

SA divorce law is not based on fault so it doesn’t matter whose faults it is that the marriage is over.

You need to satisfy the court that the marriage has in fact broken down irretrievably. Here are some examples:
1. A spouse moving out of the house;
2. Abuse of any kind by one spouse towards the other spouse of the children;
3. Habitual criminality;
4. A failure to support or provide a home for your family (as long as this is not through circumstances beyond your control);
5. Refusal or marital privileges;
6. A spouse’s alcohol or drug addiction;
7. Constant arguing, sulking or nagging;
8. A spouse’s obsession with a religious sect or political group;
9. Loss of love between the spouses’s
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WHAT WILL HAPPEN TO THE CHILDREN?

In terms of the Children’s Act 38 of 2005, Parents have the following rights and responsibilities towards their Children:

To Care for their Child, to have regular Contact with their Child and to maintain a meaningful relationship, to act as Guardian of the Child and to contribute in respect of Child Maintenance.

DO YOU HAVE TO PAY CHILD MAINTENANCE?

According to the Children’s Act every parent has a legal obligation to maintain their child until the child turns 18 or becomes self- supporting.

The amount of maintenance payable is calculated by first determining the actual costs of raising a child. These expenses include rental, food, toiletries, medical expenses, educational expenditure, clothes, electricity, transport and other expenses.
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DO I HAVE TO MAINTAIN MY SPOUSE?

One spouse may have a duty to maintain the other spouse. However, this is usually only if the other spouse was the breadwinner during the marriage and the claiming spouse was used to a certain standard of living which should be maintained after the divorce. The court will consider factors such the age of the parties, their employment status, their qualifications, and the duration of the marriage.

In general, the court awards little or no maintenance to an ex-spouse where one or more of the following factors are present:
  • The person is young or reasonably young;
  • They are well qualified;
  • There are no children;
  • They worked throughout their life and/ or are working at the time of the maintenance application;
  • They are in good health;
  • The marriage had not lasted long.
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HOW WILL YOUR PROPERTY BE DIVIDED?

If the Parties are unable to arrive at a settlement, the court may decide to liquidate the assets and divide the net returns based on the applicable marital property regime.

Typically there is a loss in the value of the returns as the assets are liquidated.

WHAT IS THE DIFFERENCE BETWEEN LITIGATION AND MEDIATION?

MEDIATION

Mediation is a voluntary process of structured negotiation that can help two spouses (parties) in conflict to meaningfully resolve their differences. Mediation is not a form of counselling. It is the process of opening up discussions to assist you to work through the various legal issues that need to be settled when applying for divorce proceedings.

A skilled Mediator assists families to engage in reasonable arrangements for the spouses (parties) with respect to the best interest of the children as well as a way forward for the spouses.

LITIGATION

When a person begins a civil lawsuit, the person enters into a process called litigation. Under the various rules of Civil Procedure that govern actions in courts, litigation involves a series of steps that may lead to a court trial and ultimately a resolution of the matter.

Before a lawsuit is filed, the person contemplating the lawsuit (called the plaintiff) typically demands that the person who caused the alleged injury (called the defendant) perform certain actions that will resolve the conflict. If the demand is refused or ignored, the plaintiff may start the lawsuit by serving copies of a summons and complaint on the defendant and filing the complaint with a civil court.

If the service of the complaint on the defendant does not result in a settlement of the issues, the plaintiff must begin the discovery process. This involves sending to the defendant written questions (called interrogatories) that seek information involving the dispute at issue. The plaintiff may also request copies of documents for review. Once litigation commences the defendant is also permitted to use discovery to learn more about the plaintiff's case. The discovery process may be conducted in a matter of weeks, or it may take years, depending on the complexity of the case and the level of cooperation between the parties.

After discovery is completed, most courts require the parties to attend a settlement conference to determine if the case may be resolved before trial. If the parties are unable to reach a settlement, the litigation continues to trial. Near or on the day of trial, one or both parties often make settlement offers, in the hope of avoiding court proceedings (which are often costly and protracted). Litigation ends if a settlement is reached.

DIVORCE IS NEVER EASY

Occasionally there will be a tale of divorced couples who amicably share the care of their children and who are successful in raising children who are psychologically sound and happy. If you are lucky to have a reasonable ex-partner, an amicable resolution can be reached. But there are times when the opposite occurs and where one parent alienates a child from the other.

Brian’s story, obtained from a Facebook post:

“I have been alienated from my children now for nearly 5 years, believe me, it gets harder each and every day. Yet, as a dedicated and loyal father I pay my maintenance on a monthly basis, give my ex an annual increase, all of this for 2 children I do not see. People say that when they are older they will come back into my life. By that time we will be strangers to each other. By that time the children can be so brain washed, that their decision is based on fear. Parental alienation is actually not the correct term, as the child or children are isolated not only from the one parent, but from an entire family. My ex allows my children no contact with my parents, or relatives like uncles, aunts, cousins etc. Where does one draw the line? I was the one facing countless false accusations. It was a constant barrage. You put out one fire out only to be confronted by the next accusation the next week. After spending millions of rands over several years, you eventually throw in the towel. It is either that, going insolvent or suicide. Those are the choices you have. I threw in the towel, but was not far away from suicide. Surely the legal system should find out why a former spouse denies the entire family of her former husband access to the children. Surely they cannot all be evil and bad people. Unfortunately the legal and justice system failed me”.

In a recent matter before the High Court in Pretoria Judge Peter Mabuse sent a clear message to parents who alienate their children from the other parent, the honourable Judge stated:

“It is humanly incomprehensible why one parent would refuse the other parent the right of access to their own child. “In my view – and here I am not laying down any general principle – a parent should encourage frequent contact between their children and parents”

In a recent case in the UK, High Court Judge Mrs Justice Parker made the following remark:

“Parents who obstruct the relationship with either mother or father are inflicting untold damage on their children and it’s about time the professionals truly understood this. I regard parental manipulation of children, of which I distressingly see an enormous amount, as exceptionally harmful”.

Parental alienation is a phrase often used in the context of high conflict divorce or separation. A key feature of parental alienation is a child’s strong alignment with one parent whilst rejecting a relationship with the other, despite a prior normal, loving, warm relationship. In countries such as Brazil and Mexico it is a crime to alienate a parent from his/her children.

Examples of parental alienation are:
 
  • to carry out campaigns for disqualifying a parent’s behaviour upon exercising his/her parenthood;
  • to obstruct the exercise of parental authority;
  • to obstruct the contact between a child or adolescent with one of their parents;
  • to obstruct the legal right to exercise family life;
  • to deliberately withhold from a parent relevant personal information on the child or adolescent, including school-related, medical, and address changes;
  • to file false charges against a parent, their family members, or against grandparents;
  • to obstruct or prevent their presence in the child or adolescent’s life;
  • to change residence to a distant place, without justification, in order to make it difficult for the child or adolescent to live with the other parent, their family member, or grandparents.
In the Australia in the case of V versus V the Court was faced with a situation where the mother unilaterally and unreasonably denied a father access to his children. After constant litigation between the parties over a period of 4 years involving 17 court orders and directions of some 16 judges the Court eventually, indicated that it was time that the litigation should be brought to an end for the sake of the children and transferred residence of the children to the father.

The Judge made the following remark in this case:

“Unfortunately the courts at all levels are well accustomed to intractable contact disputes which drag on for years with little or anything to show for the outcome except numerous court hearings, misery for the parents, who become more entrenched in their positions, wasted court resources, and above all serious emotional damage to the children. These disputes are expensive, ….. They take up a disproportionate amount of time in court, thereby depriving other cases of timely hearing. Constant litigation in respect of residence and/or contact is not only destabilising for parents and children who become a battleground to be fought over at any cost, but it is a process which progressively results in entrenched attitudes as if engaged in a war of attrition. There is also a perception that courts allow parents with care to flout court orders for contact and permit the parent with residence to exclude the parent from the lives of the children so that the other parent is worn down by years of futile litigation which achieves nothing and only ends when the parent gives up the struggle, or the children are old enough to make their own decisions, assuming they have not been brainwashed in the meantime.”.

Dr Craig Childress, a US psychologist and expert in the field of parental alienation explains parental alienation as a situation in which one parent consciously or subconsciously turns their shared children against the other parent, through various means of manipulation. It often involves the premise that one parent falsely accuses the other of abuse and indoctrinates the child into believing that abuse took place, whether it be mental, physical, sexual, or a combination.

While there are many true cases of abuse, what is key according to Dr Childress is to look at the child’s behaviour. “It’s the child’s behaviour that need to be observed. Unnecessary levels of anxiety or fear of the alienated parent can be a sign.” Eventually, children can become so indoctrinated and eager to please who they view as the “powerful parent,” they may start hating or abusing the targeted parent themselves. According to Dr Childress, parents who indoctrinate children into alienating the other parent are linked to narcissist borderline pathogenic parenting. The symptoms of narcissism include: grandiosity, entitlement, absence of empathy, haughty, arrogant behaviour and delusional belief systems.

Researcher Amy Baker says that parents who try to alienate their child from the other parent subtlety, or not so subtlety gives a three-part message to the child. She says:
“I am the only parent who loves you and you need me to feel good about yourself; the other parent is dangerous and unavailable; and pursuing a relationship with the other parent jeopardizes your relationship with me.”

Despite recognition in some of our high court judgements, parental alienation is poorly understood and rarely acknowledged in our family justice system. Whilst there is recognition of the long term psychological impact on the child, there is little research into the sense alienated parents make of their lives when being rejected.

In many cases before our courts alienated parents are subjected to false allegations of domestic violence against their ex-spouse or partner, false allegations of physical, emotional, sexual, abuse or neglect against their child. In Family law proceedings in South Africa, a child’s best interests is paramount and therefore allegations of abuse generally result in the instant interruption of direct contact with the child while fact finding, safeguarding and clinical assessments are undertaken. It goes without saying that parents who are then unable to see their child experience a presumption of guilt and a need to prove their innocence.

The legal process in determining the trust of such allegations is time consuming. The absence of direct and meaningful contact during this period often prolongs the alienation, making meaningful relationships more difficult and unlikely. One of the key determinant factors in the perpetuation of the alienation process is “time since last direct contact” according to Dr Fiona Fidler an Australian psychologist.

The lack of power that alienated parents experience is found in their experiences with, and opinions of our legal system. There is a belief that the legal process is itself helpless, powerless or unwilling to enforce the repeatedly broken contact orders which it has sanctioned.

Research presented by Dr Sue Whitcombe to the Annual Conference of the British Psychological Society’s Division of Counselling Psychology in London found in a study of 54 parents that have been alienated from their children that they initially had direct contact with their child when their relationship broke down but that contact broke down at a later date. 94% participants had engaged in family law proceedings in the courts regarding their children and 70% reported that their ex-partner repeatedly broke one or more of the court orders in place. As such, many parents feel that their former partner holds all the power. 78% of these parents had not seen their children for more than a year and 72% of the children had been cut off completely from the alienated parent’s extended family.

Dr Whitcombe also found that there was a “lack of knowledge and understanding” about parental alienation and this resonated from her own experience when raising the topic with mental health professionals, practitioner psychologists, colleagues in social care and education. It therefore goes without saying that a failure to recognise an alienation dynamic, and differentiate it from justifiable estrangement leads to inappropriate therapeutic or judicial intervention, with potentially long term detrimental repercussions for the families and individuals concerned.

According to Dr Childress the only way to deal with a parent who alienates a child from is to obtain the child’s protective separation from the borderline alienating parent. Until one obtain this protective separation, efforts to restore the child’s authentic affectionate bonding will simply lead to the child’s further triangulation into the “spousal” conflict because of the increasing psychological pressure placed on the child by the alienating parent to maintain the child’s symptomatic rejection of the other parent, thereby turning the child into a psychological battleground.

Childress uses the image of a “hostage situation” with a psychologically disturbed and highly controlling narcissistic parent, who can unleash an intense anger and rejection toward the child if the child dares to deviate from the parentally desired responses. He believes that unless one is able to free the child from this hostage situation, one cannot reasonably ask the child to go against the will of the personality disordered “hostage taker” because of the excessive degree of psychological torment the child will be subjected to if the child does show an affectionate bond with the target parent.

Childress also believes that to convince the child to show affectionate bonding towards a targeted parent the alienating parent will increase the psychological pressure on the child to remain symptomatically rejecting the targeted parent. This essentially according to him turns the child into a psychological battleground which will destroy the child. He says further that to begin to restore the child to balanced and normal-range functioning, one must first protect the child from the distorted and pathogenic parenting of the personality disordered alienating parent. No qualified therapist according to him should attempt “reunification therapy” without first obtaining a protective separation of the child from the distorting pathogenic influence of the narcissistic-borderline personality disordered parent.

Essentially, the situation represents the Judgment of Solomon. Two women came before Solomon, each claiming that a baby was theirs. Solomon ordered the child cut in half, and that half be given to each woman. The child’s true mother intervened and told Solomon not to cut the baby in half, but to instead give the child to the other woman. Solomon recognized this woman to be the child’s true mother since she was willing to give up the child rather than see the child destroyed, and Solomon awarded the child to the true mother.

In attachment-based “parental alienation”, the personality disordered narcissistic borderline alienating parent is entirely willing to psychologically destroy the child rather than see the child bond with the targeted parent. Any steps to restore the child’s normal range and balanced functioning, will increase the psychological pressure on the child to remain symptomatic, and the narcissistic-borderline parent is willing to psychologically destroy the child in the process if it is necessary to prevent the child from forming an affectionate bond with the alienated parent.

The sad reality is that in many instances an alienated parent is unwilling to psychologically destroy the child and placed in a position where such a parent relinquish the child to the psychologically disturbed, personality disordered parent, the emotionally and psychologically false parent, because the alienated parent is unwilling to “cut the child in half.”

Unfortunately the wisdom of our legal system often fall short in recognizing a child’s true psychological and emotional parent, the parent who is relinquishing the child (i.e., is being rejected and abandoned by the child) because this parent is unwilling to destroy the child in order to possess the child. The time has come for our courts to recognize the false parent, the narcissistically self-absorbed parent who is willing to psychologically and emotionally destroy the child in order to possess the child as a narcissistic object and symbol of his or her narcissistic victory over the other parent.

Regrettably, this level of sophisticated wisdom is far too often lacking from the Court. Childress makes a valid point and believes that the wisdom of our Courts is dependent upon the wisdom provided from mental health in identifying the underlying pathology, and currently our mental health practitioners are woefully inadequate in reliability identifying the pathology associated with attachment-based “parental alienation.” According to him the Courts’ wisdom is lacking because: “…mental health has failed in its responsibility to the targeted parent and child. The mental health response to attachment-based “parental alienation” needs to change dramatically before Courts will be able to act with the decisive clarity necessary to solve the tragedy of parental alienation.”

It is clear that the biggest challenge currently facing targeted parents and children is that many mental health professionals either are not aware of, or don’t fully understand, parental alienation. Educating legal and mental health professionals about parental alienation is a critical step in helping parents and children overcome the actions of an alienating parent. If we don’t recognise this, our children and their parents will continue to suffer.

My heart goes out to the many good parents out there, who suffer as a result of alienation. Even more so to that of the bullied children as under the circumstances they are not given the opportunity to grow in an accommodating environment and this will have long term effects on their personal development and social skills. A child is not an extension of yourself.
A child is their own person with their own needs and instinctively wants to know both parents.

Realistically the child and their children will need the support of both parents in their developing years.

Contact Us

Office Number: 0861 326459
Marici M Corneli: 082 254 1677
854 Frhensch Street
Moreletapark
0044 Pretoria (Tshwane)
Gauteng
South Africa
 

About Marici

Marici Corneli is an architect of change in the field of Mediation. She journey’s alongside people in Mediation assisting them in their way forward. Her motto is:

“Let`s get understanding and closure with every successful agreement in every mediation we journey through.” – Marici

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