Going Through a Divorce
Consider the Scenario
You are thinking about going through a divorce whether you have discussed it with your spouse or not or your spouse wants to go through a divorce and you are unsure about the process, your rights and your children.
a. What about my pre-nuptial or ante nuptial agreement?
i. If you and your spouse have signed an agreement prior to getting married and it has been registered, then you are married out of community of property. Either with or without the inclusion of the accrual system;
ii. If you have an ante nuptial agreement, the assets will be divided according to this agreement;
iii. If you do not have an ante nuptial agreement, you are likely married in community of property, which is discussed below;
a. What about the children?
i. If you and your spouse have agreed to divorce and have agreed on the terms of the divorce, this would have to be included in a settlement agreement between the two of you. This settlement will also include the maintenance obligations of both parties in respect of the child, as well as living arrangements, and so on;
ii. Before your divorce goes to court, the Family Advocate’s Office will query the settlement and endorse or reject it based on the interests of your children and whether it believes the agreement is in the child(ren)’s best interests;
iii. If you and your spouse can not agree on the terms of settlement of the divorce, the Family Advocate’s office will interview all parties, as well as the children (depending on age) and draft a report of what they believe will be in the child’s best interests. Further reports may also be required by a social worker or psychologist before the court will make a ruling on what will happen to the child(ren);
a. What if I’m married in community of property?
i. If you are married in community of property, all the assets belonging to both parties will be divided equally amongst the parties;
ii. If you are unsure about how you are married or if you have concerns about any ancillary issue related to your community of property, it is advisable to seek legal advice.
a. Maintenance for myself or the children?
i. A party may request maintenance for themselves if they legitimately require maintenance and the party they are requiring maintenance from is in a position to supply such maintenance;
ii. All children are entitled to maintenance from both parents based on the parents’ respective means to provide for such maintenance;
iii. If a party does not request maintenance for themselves (not children) during a divorce, they may not request maintenance for themselves at any time in the future after the divorce.
a. Everything is always divided 50/50.
i. This is not true. It depends on whether you are married in community of property or out of community of property, with or without accrual as well as the contents of your ante nuptial contract (if you have one).
a. I need an attorney to get divorced.
i. This is not true. Individuals may approach their regional magistrate’s court and apply for a divorce privately. The court will then assist you with your divorce.
ii. It is however advisable to seek legal advice or legal representation based on whether the divorce is foreseeably complicated or if large sums of assets are involved, especially if you and your spouse cannot agree on terms to settle the divorce.
a. All divorces are quick/ all divorces take a long time.
i. It depends entirely on the circumstances. If parties to a divorce can agree on the terms, a divorce may be much quicker than if the parties elect to dispute the terms of the divorce and division of assets or circumstances surrounding children. If a divorce becomes complicated it may end up being years instead of weeks or months.
Should you or your spouse decide on a divorce and feel overwhelmed, we recommend contacting an attorney who will advise on the best course of action going forward. We understand that a divorce may be difficult, especially in a situation where children are involved. Contact us to arrange a consultation so we may assist you with your divorce.