Billy Gundelfinger and Mandla Mandela in the Mthatha court in 2015. Photo: Simbongile Mdledle
- Applications for divorce usually spike at the start of the year.
- But South Africa's best-known divorce lawyer believes you shouldn't rush into a divorce after a fraught holiday season.
- If you do decide to push ahead, Billy Gundelfinger has some advice on what mistakes to avoid.
Across the world, January is known as Divorce Month – and South Africa is no exception.
“When I come back from vacation in December, it’s usually total chaos at the office,” says Billy Gundelfinger, South Africa’s best-known divorce lawyer.
Over his four-decade career, Gundelfinger has represented the likes of President Cyril Ramaphosa (in the divorce following his first marriage), Mandla Mandela, Malusi Gigaba, Tokyo Sexwale, Bill Venter, ‘Baby Jake’ Matlala, Rhema Bible Church leader Ray McCauley, former SAA CEO Khaya Ngqula, Sir Donald Gordon (chairman of Liberty International), and a daughter of former president Jacob Zuma in their divorces.
According to a Sunday Times report, “being Gundelfingered” has become a verb in certain Johannesburg circles.
Gundelfinger, who is a part-time law professor at Unisa, these days only takes on “big money” divorce and criminal law cases.
The traditional spike in divorce applications in January follows from conflict over December, he believes: during the holiday, couples are forced to live in close quarters with each other – without the distractions of work and other activities.
“They start looking critically each other and then usually one party decides: ‘This is not how I want to live the rest of my life’ and files for divorce in January.”
But Gundelfinger recommends waiting at least until the end of February before you take action.
“Often people rush into a divorce in January, when the problems could be sorted out through counselling. Divorce isn’t always the answer – particularly not when there are children involved.”
When you do decide to pursue a divorce, here are some of the biggest mistakes to avoid:
Not arriving at a settlement before you go to court
“A bad settlement is better than an acrimonious and costly fight in court,” says Gundelfinger.
Sit down with your spouse and attempt to come to an amicable agreement about what you want to do with your assets and sort out child-related issues before you have to slug it out in court.
Your lawyers can help you draw up a settlement agreement, stating:
- How your assets will be divided up.
- Who will get custody of the children and arrangements regarding contact
- All issues regarding maintenance.
The more you can agree to before you go to an attorney, the more money you will save.
When the divorce is finalised and the parties have signed a settlement agreement, the agreement becomes an order of court, and if one of the parties doesn't adhere to it, they will be in contempt of court.
Choosing the wrong lawyer
Get an attorney who specialises in divorce and family law – it will save you money, believes Gundelfinger.
“If the lawyer is specialised, the case will be wrapped up in a much shorter time.”
Remember that there are many factors to consider, especially if property ownership is transferred – including problems surrounding capital gains and donations tax. Getting an expert in divorce issues could help prevent long-term problems.
Unnecessarily going the expensive route
If you don’t have children, and you have agreed on how assets should be divided, go directly to the high court or the family court, where you can represent yourself and don’t need a lawyer.
Guldenfinger believes, in some cases, you can even opt for a DIY online divorce.
Divorce in South Africa: how it works
Civil marriages and marriages according to customary law can only be dissolved by the courts. (Muslim, Hindi, and Jewish marriages are governed by religious rules.)
Generally, divorces are granted by the High Court or a Family Court, which is part of the Magistrate's Court.
One of the parties has to issue a summons and inform the other that the divorce proceedings are being instituted. The summons has to be served by the Sheriff of the court. The other party may either defend the action or allow it to go through by default.
Attached to the summons must be a “Particulars of Claim” that details information relating to the parties, their children, the jurisdiction of the court and the reason for the irretrievable breakdown of your marriage.
The summons is then issued (stamped) by the Registrar of the court. The other spouse has ten days to advise the court (or the attorney who issued the summons) that he or she will defend the action.
If it’s opposed, a date will be set for a hearing. If not, the case can be added to the unopposed divorce roll and a court date will be set for the divorce.
You can agree how your assets are to be divided in a settlement agreement.
If you don’t have such an agreement, your assets will be divided according to your “marital regime”.
If you were married in community of property, each of you will receive 50% of the assets.
If you have a prenuptial contract, signed before you got married, that will determine how assets will be divided.
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