family law
Family Law
We understand that divorce and family law matters can be emotionally challenging. Dont try to find your way alone through the legal complexities if you face a divorce or family law issue. Trust the expertise of Nagel Attorney & Notary to provide you with reliable advice and skilled representation. We are committed to achieving the best possible outcome for you and your loved ones helping you make informed decisions that protect your rights and your family’s best interests.
- Divorce
- Maintenance
- Domestic Violence
- Protection Orders
- Estate Planning
Divorce
Divorce may be one of the most painful and stressful times a person will experience as it may uproot their entire life and cause great emotional turmoil and distress. Divorce proceedings affect all members of the family and may have a profound impact on their physical, physiological, mental, emotional and financial well being.
We are committed to minimizing the emotional and financial stress of divorce on all members of the family. We pride ourselves on ensuring that the divorce proceedings are handled as cost effectively and expeditiously as possible, so you can get on with building a better future.
In order for a decree of divorce to be granted, the following has to be proven by the party instituting the divorce proceedings:
- The marriage has irretrievably broken down. (Section 4 of the Divorce Act
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- This usually includes some or all of the following factors: that the communication between the parties has completely broken down; the parties have not lived together continuously for a period of one year as husband and wife; and that the parties have lost their love and respect for one another; or
- The mental illness or the continuous unconsciousness of a party to the marriage (Section 5 of the Divorce Act)
Types of divorces in South Africa:
TYPE 1: UNCONTESTED OR UNOPPOSED DIVORCE
The uncontested divorce is the quickest and most inexpensive type of divorce. It requires both spouses agreeing that they want a divorce and working together to agree on the terms of such divorce, such as maintenance, the division of assets, primary residence and care of the children.
The spouses may elect to consult with and appoint an impartial attorney to manage their interests and draft the official settlement agreement on their behalf. This settlement agreement embodies the terms agreed to between the spouses and is signed by both of them. The signed settlement agreement is then made an order of court.
Uncontested divorce proceedings may be finalized in a matter of weeks.
TYPE 2: CONTESTED OR OPPOSED DIVORCE
Contested divorces are the least favourable of the types of divorce. These divorces may, in some instances, take years to finalise and may cause significant emotional and financial harm to all family members.
Contested divorces occur when spouses cannot agree on the terms and conditions of their divorce. The most common disagreements relate to maintenance, division of assets and child care. In some instances, one or both spouses refuse to settle for emotional reasons.
In a contested divorce both spouses would need to appear in court several times in order to allow the court to determine the terms of their divorce.
This can result in very high legal costs, severe emotional trauma and may take three years or longer to finalise.
Interim Maintenance
As mentioned above, contested divorces may take some time to finalise. In some instances, divorce proceedings may even stretch over a number of years, depending on the complexity of the matter. In many cases parties need to obtain urgent relief from the Court regarding certain aspects of the divorce, which cannot wait until the trial. Rule 43 applications were specifically designed to deal with these cases.
Rule 43 Applications
Rule 43 of the High Court Rules makes provision for a process whereby a party to divorce proceedings may approach the Court on a fairly urgent basis to obtain interim relief pending the finalisation of the divorce proceedings. The said application deals with the following aspects, namely:
- maintenance for one of the parties pending the finalisation of the divorce;
- maintenance for the children pending the finalisation of the divorce proceedings;
- interim custody of the children;
- interim contact and rights to access in respect of the children;
- a contribution towards the legal costs of one of the parties to the divorce proceedings.
Whatever path your divorce takes, our dedicated team of attorneys will be at your side to support and guide you through the process as painlessly as possible.
Domestic Violence
Sadly, South Africa has one of the highest incidences of domestic violence in the world. We at Nagel Attorney & Notary are here to help.
THE DOMESTIC VIOLENCE ACT 116 of 1998
The Domestic Violence Act 116 of 1998 (the Act) was promulgated in 1998 to deal with domestic violence in South Africa and gives us the necessary tools to help you out of this awful situation.
The aim of the Act is to provide people who are experiencing domestic violence with the maximum protection of the law. This is done by creating various legal consequences for domestic abuse and obliging law enforcement bodies, such as the South African Police Service, to protect victims as far as possible. The Act also provides for the obtaining of protection orders by victims of domestic violence.
The Act further stipulates that this protection is extended to men, women or children who find themselves in a domestic violence situation. Anybody may be a victim of domestic violence. All the Act requires is that the victim is in a domestic relationship with the abuser. A domestic relationship is very widely defined as a relationship between the victim and the abuser, be it through marriage, cohabiting or dating, or even just living in the same home, whether as family members or simply residents in the same premises. That is, the abuser can be anyone that you currently or previously live or lived with and includes family members, intimate partners and others.
The definition of domestic violence is also very wide and includes abusive behaviour in the following forms:
- physical abuse
- sexual abuse
- emotional, verbal and psychological abuse
- economic abuse
- intimidation
- harassment
- stalking
- damage to property
- entry into property
- any other controlling or abusive behaviour
Protection Order
A protection order is also known as a restraining order or domestic violence interdict. It is a court order issued at the victim’s request ordering an abuser to stop the abuse. It applies whether they commit the abusive act themselves or even get someone to help them to commit such acts.
The protection order may also set certain conditions aimed at preventing the abuser from harassing or abusing the victim again. For example, it may prevent economic abuse by ensuring that the abuser continues to pay rent or interim maintenance.
If the abuser disobeys a protection order, whether interim or final, the Act makes it clear that the South African Police Service must come to the victim’s assistance. The South African police will arrest the abuser as he / she is contravening a court order. Furthermore, the police will also accompany the victim to his / her home to remove his / her personal items.
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