Factors to consider when getting divorced
There are a number of issues that need to be addressed in a divorce, including
- custody of the children
- access to the children
- dividing up property
Custody of the Children: before the court will issue a divorce, it has to be decided who will look after the children. The parents can make an agreement or the court can decide. The most important consideration in deciding which parent should have custody is the best interests of the children. The Family Advocate at the court can help investigate which parent is in the best position to look after the children and will represent the children in the court if necessary.
If the divorce is taking a long time, for example if the parties don't agree, then an interim custody order can be issued setting out who will look after the children while the divorce is being finalised.
Access to the Children: the parent who does not get custody will usually still want to see their children. There therefore needs to be an agreement about when, where and how this parent will have access to the children. If it is not in the best interests of the children for the other parent to have access rights, then the court can restrict access.
Maintenance: when a couple gets divorced, one party is often in a better financial position than the other. The person who has custody of the children will also have expenses that the other parent does not have. The court will issue a maintenance order requiring maintenance to be paid for the children and, depending on the circumstances, to the other party.
Maintenance for the children is paid to the parent who has custody (but it is important to remember that this is the child's right and not the parent's). All parents have a duty to support their children, including children who are illegitimate. If there are problems with maintenance after the divorce has gone through, these can be taken to the Maintenance officer at the Magistrates Court. Whether one party will have to pay maintenance or support to the other party depends on the circumstances. If the parties cannot agree on how much should be paid then the court will decide.
Dividing Up Property: how the family property will be divided up depends on what property regime the couple adopted when they got married. This will usually be covered in the ante-nuptial agreement if there is one or, if there is no pre-marital contract, then it is determined by law.
The default legal position is that civil marriages are in community of property with accrual. This means that everything that you own is shared, including property and debts. Accrual means that everything that you earn or buy after you have married also becomes part of the joint estate. If you get divorced, the shared property is divided equally between you. Any debts are also shared.
If you sign an ante-nuptial agreement, you can choose to get married: in community of property; out of community of property without accrual; out of community of property with accrual. If the marriage is out of community of property without accrual, then each person keeps their own property from before the marriage and keeps whatever they earn or acquire during the marriage. If the marriage is out of community of property with accrual then each person keeps their own property from before the marriage but anything that is accumulated during the marriage is shared. Some things, like inheritances or gifts remain separate. The default property regime has changed for different people at different times. The laws that were in place when you got married will determine what property regime will apply to your marriage.