Divorce Attorney Cape Town

How not to tell your spouse you want a divorce


The cruellest way you can tell your spouse you want out of the marriage is to never mention that you are unhappy and then, one day quite out of the blue say, “I’m not happy. I want a divorce.” I call this a “hit and run” way to tell your spouse you want out of the marriage and, in my professional opinion, it is the most hurtful, hateful and heinous way to exit your nuptials.

Those on the receiving end of this proclamation would surely agree with me. A hundred per cent of the people who come to see me after their spouse has dropped this two ton bomb on them have been nothing short of devastated, bleary eyed and incapacitated–often for a long time. What, when and how you tell your spouse you want a divorce will depend greatly on whether the two of you have had any previous conversations about divorce.

Couples who have been mutually unhappy or have had conversations using the “D” word will obviously be less thrown off than those who didn’t see it coming. One woman described the day she was told this way: “My biggest concern that morning as we went to work was what we would be having for dinner that night.” She had no idea that her husband was even unhappy, let alone that he was thinking of leaving. It makes me wonder why so many people take this strategy. What could they be thinking? Or not thinking? Feeling? Or not feeling? While there are always exceptions to any rule, I have seen five main reasons why “hit and runs” are so prevalent. I’ve also included rebuttals to these reasons that demonstrate how the leaver actually ends up getting the opposite result intended.

1) Fear: If I tell him I’m unhappy, he will go to pieces and I’ll feel guilty Where’s the logic here? Do you not see that if you LEAVE suddenly he will be more likely to go to pieces and you will feel more guilty?

2) Selfishness: I don’t care about her feelings. “I just want out!” Treating someone with this level of disrespect and disregard actually keeps you in longer and stronger because the person you are leaving is in shock and often can’t/won’t accept the fact that you really mean what you are saying and that you want out.

3) Impatience: I just want to get this over with! Again, the chances of exiting quickly or gracefully diminish drastically when you give your spouse no warning of your departure. Your spouse, who may be just starting the grief process, will delay the process interminably by having to have their emotions “catch up” to yours.

4) Lack of Courage: I’m a “rip the band-aid off quickly” kind of person because I can’t stand to hurt someone If this person had courage, they would have told their spouse way back when that they were not happy. They would have had the courage to do the work it takes on themselves and on the marriage; the courage to face their problems.

5) Sneakiness: Maybe I can live a double life and he’ll never find out It is often people who have been having an affair who take this tack in leaving their marriage. They have set themselves up with a new life and they are ready to move on. I’m sure there are other justifications people can come up with as to why they leave this way, but it only serves to make the process take longer, make the separation more difficult, make your spouse more emotional and perhaps even irrational and it is not the way you treat someone you exchanged vows with.

By Susan Pease Gadoua Author, Contemplating Divorce, A Step-by-Step Guide to Deciding Whether to Stay or Go Original article at: http://www.huffingtonpost.com/susan-pease-gadoua/how-not-to-tell-your-spou_b_820042.html

Compiled by Bertus Preller Divorce Attorney – Abrahams and Gross Inc. http://www.divorceattorney.co.za

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Parenting Plans and Divorce in South Africa


Parenting plans and the Children’s Act in South Africa

A parental responsibilities and rights agreement is a mechanism by which a person who does not have parental responsibilities and rights acquires them by agreement with the child’s mother or another person who has parental responsibilities and rights in respect of the child.

Two categories of persons can acquire parental responsibilities and rights in this way: the first, which is of particular importance in the context of the law of persons, is the biological father who does not have automatic parental responsibilities and rights in respect of his child in terms of s 21 of the Act and has not acquired parental responsibilities and rights by a court order or by marrying the child’s mother or entering into a civil union with her.

Thus, an unmarried father who does not already have parental responsibilities and rights can acquire them by means of a parental responsibilities and rights agreement. The second category is any other person who has an interest in the child’s care, well-being and development (such as a grandparent).

A parental responsibilities and rights agreement confers only those responsibilities and rights that are set out in the agreement and cannot confer more responsibilities and rights than the conferrer has. Thus, for example, a 16-year-old unmarried mother, generally, cannot in a parental responsibilities and rights agreement confer guardianship on the child’s father, as her guardian is the child’s guardian.

The parental responsibilities and rights agreement must be in the format and must contain the particulars prescribed by the regulations under the Act. The agreement is unenforceable until it is registered with a family advocate or is made an order of court on application by the parties to it.

The courts which may make the agreement an order of court are the High Court, divorce court dealing with a divorce matter, and the children’s court within whose area of jurisdiction the child is ordinarily resident. However, if the agreement relates to guardianship only the High Court may confirm it.

Before registering the agreement or making it an order of court, the family advocate or court must be satisfied that the agreement is in the best interests of the child. Once the agreement has been registered or made an order of court, it can only be terminated or amended by the family advocate or the court. If the agreement relates to guardianship, only the High Court may vary or terminate it.

Adoption is another way in which an unmarried father can acquire parental responsibilities and rights. He can adopt his child either as a single parent, or jointly with his spouse, civil union partner or permanent domestic life-partner.

Regardless of whether or not he has parental responsibilities and rights in respect of the child, the unmarried father’s consent is required if another person wants to adopt the child, unless:

(1)          He is incompetent to give consent due to mental illness.

(2)          He has abandoned the child, his whereabouts cannot be established, or his identity is unknown.

(3)          He has abused or deliberately neglected the child, or has allowed the child to be abused or deliberately neglected.

(4)          He has consistently failed to fulfil his parental responsibilities towards the child during the last 12 months.

(5)          A court has divested him of the right to consent to the child’s adoption.

(6)          He has failed to respond to a notice of the proposed adoption within 30 days of service of the notice.

(7)          He failed to acknowledge paternity in the manner prescribed by the Act.

(8)          The child was conceived as a result of incest.

(9)          Following an allegation by the child’s mother, the children’s court has found on a balance of probabilities that the child was conceived as a result of rape.

Grounds (1) to (6) above apply equally to the unmarried mother of the child. Further, if either parent unreasonably withholds consent to the child’s adoption, his or her consent can be dispensed with and the adoption order granted if the court finds that the withholding of consent is unreasonable and the adoption is in the best interests of the child.

If more than one person has parental responsibilities and rights in respect of a child, a parenting plan may be needed. A parenting plan is an agreement in which co-holders of parental responsibilities and rights make arrangements on the way in which they will exercise their respective responsibilities and rights.

If co-holders of parental responsibilities and rights experience difficulties in exercising their parental responsibilities and rights, they must try to agree on a parenting plan before seeking court intervention.

Thus, for example, if both unmarried parents have parental responsibilities and rights, they must attempt to enter into a parenting plan if they disagree on the exercise of these responsibilities and rights. In preparing their parenting plan, they must seek the assistance of a family advocate, social worker or psychologist, or mediation through a social worker or other suitably qualified person.

Co-holders of parental responsibilities and rights may enter into a parenting plan even if they do not experience difficulties in exercising their responsibilities and rights, but then they need not seek the assistance of a family advocate, social worker or psychologist, or mediation by any person. A parenting plan must be in writing, be signed by the parties and comply with the best interests of the child standard as set out in s 7 of the Act.

Bearing in mind the child’s age, maturity and stage of development, he or she must be consulted during the development of the parenting plan, and he or she must be granted an opportunity to express his or her views. Those views must be accorded due consideration.

Once a parenting plan has been agreed on, the family advocate, a social worker, social service professional, psychologist or suitably qualified person, or the child’s legal representative must inform the child of the contents of the plan, bearing in mind the child’s age, maturity and stage of development.

The plan may be registered with a family advocate or be made an order of court. A parenting plan that was registered with a family advocate may subsequently be amended or terminated by the family advocate upon application by the parties to the plan.

If the parenting plan was made an order of court, it may be amended or terminated only by another order of court. The co-holders of parental responsibilities and rights who are parties to the plan, the child (with the court’s consent), or any other person acting in the child’s interests and with the court’s consent may apply for the amendment or termination.

Finally, in respect of a minor’s capacity to act, and specifically his or her capacity to consent to medical treatment and an operation, s 129 should be noted. It provides that a child who is below the age of 12 years may not have medical treatment or an operation without his or her guardian’s consent.

Consent is also needed if the child has already turned 12 but is immature and does not have the mental capacity to understand the benefits, risks, social and other implications of the medical treatment or operation.

If the child is older than 12 and sufficiently mature and has the mental capacity to understand the benefits, risks, social and other implications of the operation, he or she still needs the assistance (but not the consent) of his or her guardian for an operation on himself or herself or his or her child.

If the guardian unreasonably withholds consent, refuses to assist the minor, is incapable of consenting or of assisting the minor, cannot readily be traced or is deceased, the Minister of Social Development may give consent.

Divorce Application Forms


If you intend to get divorced in South Africa, the best way would be to use an online Divorce Service like eDivorce. The process is easy and without hassle, simply fill in the online divorce application form and your papers will be ready in less than 24 hours.

The eDivorce process has three Divorce Plans from which you can choose:

The Silver Plan – R 950 + Sheriff Fee of between R 100 – R 150 – The best DIY divorce service to meet all your needs

  • All your divorce forms – Summons, Particulars of Claim, Annexure A, Government Statistic Form and Settlement Agreement, completed for you by the eDivorce platform and checked by divorce experts
  • Step-by-Step Guide -Written in plain English and easy to follow
  • Fast Service – Documents delivered within 24 hours guaranteed
  • Divorce in 6 – 8 weeks

The Silver + Plan – R 2 000 – Partially DIY

  • All your divorce forms – Summons, Particulars of Claim, Annexure A, Government Statistic Form and Settlement Agreement, completed for you by the eDivorce platform and checked by divorce experts
  • Step-by-Step Guide -Written in plain English and easy to follow
  • Issuing of papers and registering at Court
  • Delivering of papers to sheriff
  • You collect served papers from sheriff and file and obtain divorce date at court
  • Divorce in 6 – 8 weeks

The Gold Plan – Managed Divorce Service – R 5 000 all inclusive by Specialist Divorce Attorney

We will not charge you by the hour or minute to deal with your divorce. The price you pay is fixed from the start of your case and includes everything you will need.

Why choose our Gold Plan Managed Divorce Service?

  • No complicated form filling – We will do that for you
  • All your required divorce documents-Prepared and completed by divorce specialists
  • 7 day a week service- We are open when it is convenient for you
  • All documents filed at court for you – We deal with all the filing and admin
  • Settlement Agreements are catered for- We can help you, with or without children
  • GET A FREE Will – For both Husband and Wife if you need one
  • Divorce in 3 weeks -Fast service guaranteed
  • Attorney supervised – All services supervised by an Attorney
  • Appearance at Court – We appoint an Attorney or Advocate to appear on your behalf at Court
  • Professional and Trustworthy
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