Divorce Season is here, the unfortunate reality.

2016-01-12 12:50

Divorce filings climb sharply in January and February. The festive season is supposed to be a time for family, a time of joy, a time to be merry and a time for reflection. Sadly, however, it is often a time when people are disappointed, angry and hurt, prompting January and February visits to a divorce lawyer. No matter how you look at it divorce is always an emotional rollercoaster for all parties concerned and have a ripple effect on immediate family and friends, not to mention the financial turmoil that follows.

Why is January and February the months in which so many people file for divorce? Couples who are the parents of younger children hold off filing for divorce just prior to and during the festive season to avoid upsetting the children and extended families during the holidays. Other couples just can’t add one more thing to their plate during a busy time of year. You cannot pick your relatives and so many people cannot stand spending time with their in-laws. During holidays people also make mistakes. The one drink too many at that holiday gathering or at an office party. A word that should not be said, a careless email, Facebook post or Tweet or text message the list is actually quite endless and with social media, it has become so much easier to cross that line than it was a few years ago, just ask Penny Sparrow. During this time of the year online searches for information about divorce reach their peak. The festive season can be very difficult for many families. Many people may have already decided before Christmas that they wish to separate, but hold off doing so until the beginning of the New Year for the sake of the family. But once the Christmas decorations are pulled down and the New Year’s parties’ messes have been cleaned up, the rush become a reality.

Making the decision to get divorced is difficult no matter the time of year and it should always be the last resort after everything else had failed. Divorce is usually the result of a long thought process lasting weeks even months or even years. It is even more difficult when there are children involved, after all the children did not ask for it. By having to hold your family together and to put on a happy face when you realise your marriage is disintegrating make it even worse.

To fuel the “divorce fire” even further all you need to do is to land in the office of a litigation hungry divorce lawyer. As Craig Ferguson, author of the American on Purpose: The Improbable Adventures of an Unlikely Patriot, says: “Divorce lawyers stoke anger and fear in their clients, knowing that as long as the conflicts remain unresolved the revenue stream will keep flowing.” Fortunately not all lawyers are like that.

The matrimonial laws in South Africa does not contribute much to a resolving issues amicably especially in contested divorce cases. Although the divorce process in South Africa is relatively straightforward, the financial and emotional consequences can be profound, especially since most divorces are normally lodged in the High Court, where the costs to litigate are extremely high. The other harsh reality is that the High Courts in South Africa have overly burdened court rolls, and parties normally have to wait a long time for their divorce matter to go to trial when their divorce is contested. The backlog in cases was somewhat lessened when the Regional Courts Amendment Act came into effect in 2010 to amend the Magistrates’ Courts Act, 1944, so as to allow regional divisions of the magistrates’ courts to also deal with divorce cases. These courts operate fundamentally along the same lines as those courts that deal with car accidents, financial disputes such as liquidations and sequestrations, and criminal matters. Although the judges and magistrates in these courts are highly competent, the rules of these courts don’t always coincide with solving disputes that arise in the divorce process.

Many children live for at least a little while after the breakup with the secret hope that their parents will get back together. The first thing many fear is whether there will still be a roof over their heads and food on the table once one of their parents moves out of the family home. The life changes brought on because mum and dad don’t love each other anymore are usually a shock from which a child never quite recovers. Furthermore, when it comes to trial, the children may be studied and questioned by psychologists and social workers to determine their care, residency and contact arrangements.

Having a judge decide these sorts of issues a year or three later during contested divorce proceedings in a formal courtroom often raises feelings of anger, resentment and humiliation that are bound to be carried home to the children. Pretty soon ‘dad’ becomes ‘your father’ and ‘mum’ becomes ‘your mother’, and a child’s plea for a new iPad, just like his/her friend has, may be answered with ‘ask your father, he has all the money’. A more reasoned approach is to send a child off for a visit with ‘have a great time with your dad and tell him I say hello’.

In the forward of the book “Everyone’s Guide To Divorce and Separation”, published by Zebra Press Judge Denis Davis makes a valid point. He says: “…litigation is truly the option of last resort in the event of a matrimonial dispute. The adversarial process which is the manner in which law operates is not at all conducive to a settlement of issues, particularly custody of minor children which have a long-lasting and vital impact on the lives, not only of the antagonists but also the children who have not, in any way, caused the problem which has given rise to the forensic battle. Often in my experience on the Bench, I have wondered how such vicious and counterproductive litigation can be allowed to continue. Lawyers will point to clients, whose disappointment in the breakdown of the marriage now powers such adverse feelings to their erstwhile partner, as the core reason for the ‘legal fight to the finish’”.

It is clear that our laws dealing with divorce law must change to lessen the emotional impact on the divorcing spouses and their children. It is abundantly clear that divorce mediation is a very important tool for dealing with divorce and family law disputes. Especially since there are usually strong emotional issues involved and very often there will be an ongoing relationship between the parties because there are children involved. It is therefore important that spouses should first attempt to resolve their issues by way of mediation before they are exposed to the confrontational and adversarial nature of our current court system. But when mediation fails parties are forced to litigate at great expense.

Maybe the time has arrived to implement an arbitration system in South Africa to deal with divorce disputes when mediation fails, instead of litigating in a court of law. Divorce Arbitration has been available in the UK for a few years now. Arbitration is a form of dispute resolution. The parties enter into an agreement under which they appoint a suitably qualified person (an “arbitrator”) to adjudicate a dispute and to make an award. Family or Divorce Arbitration can provide an alternative to going to court. It can be cheaper, much quicker, and possibly fairer, bearing in mind that some judges and magistrates have less expertise in family law than a qualified trained Divorce Arbitrator may have.  A divorcing couple can choose their Arbitrator, selecting one who is specialised in the required legal area, and they are still in control of their divorce process. If spouses go to court they do not choose the judge and have no way to reject a judge who doesn’t have the level of expertise to make legal decisions about their case that a qualified Divorce Arbitrator will have.

It is said that divorce is more emotionally devastating than losing employment, about equal to experiencing a major illness, and somewhat less devastating than the death of a spouse. Often people rush into a divorce as a solution to their marital problems without taking the time to consider the consequences of their decision. Divorce takes a huge toll on all parties involved, and the wounding effects can last for many years. From kissing one another at the alter with so many positive hopes and dreams for the future, to literally not standing the other person is almost unthinkable.

Compiled by Bertus Preller

Family Law Attorney

Bertus Preller & Associates Inc.

www.divorcelaws.co.za

Twitter: @bertuspreller

Facebook: divorceattorneys

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