Best advice on finding a top divorce lawyer for your divorce case in Constantia – Cape Town

Do you live in Constantia, and are you considering divorcing your spouse? Or have you been threatened with divorce? Either way, a divorce is a legal matter, and it is best to find sound legal advice or assistance. Furthermore, divorcing someone has potential severe legal consequences you may not know of. The first consequence, of course, is that you are no longer married to your former spouse, and there is no legal obligation to maintain each other (unless you qualify for alimony). You may also not inherit from your former spouse’s intestate. Lastly, and obviously, you are free to marry someone else. However, do you know of the proprietary (property) consequences of getting a divorce? What about the assets and debt you and your spouse incurred in Constantia or elsewhere during your marriage? Do you know what should happen to it? If not, it is best you find out about these critical aspects and others before getting divorced. Then there is the issue of parental responsibilities and rights after the divorce should there be minor children involved. This article aims to provide guidance on finding the best attorney or advocate for your divorce matter that can adequately and properly advise you or handle your divorce. The advice would apply whether you live in Constantia or anywhere else in South Africa. The issues we shall deal with are the following.
  • Gender of the Advocate or attorney;
  • Location of the Advocate or attorney;
  • Experience of the Advocate or attorney;
  • Costs of the Advocate or Attorney; and
  • The personality of the Advocate or Attorney.

What is the best gender of the Advocate or Attorney I need to use for my divorce? Is a male or female better?

Generally, the gender of your Advocate or Attorney should not play a role at all in a legal matter. However, depending on your background and the issues involved in your divorce, you may prefer a specific gender where you may feel more comfortable. A female who has been emotionally, physically and psychologically abused may be more comfortable with a female Attorney or Advocate. However, the same female client may prefer a male Advocate or Attorney. No more will be said on this issue.

What is the ideal office location of the Advocate or attorney? Does it have to be in Constantia?

The location or office of your attorney or Advocate is essential if you wish to consult with them in person. It is also ideal, but not necessary, for their offices to be close to the Court where the divorce would be handled. However, many lawyers make use of correspondent lawyers for this purpose. Furthermore, location should not be an issue if you want a specific lawyer to handle your case. This is so especially seeing that people are making use of virtual meetings.

What level of experience should the Advocate or attorney have?

It is important to remember that not all legal matters require the best lawyer. If your divorce is straightforward, finding the best lawyer in the field is unnecessary. The best may be very busy and lack the time to give your case the attention it deserves. However, if your matter is complicated, then in that case, the most experienced and best lawyer out there is not warranted.

What about the Costs of an Attorney or Advocate?

For many, the costs of the Attorney or Advocate are the most crucial consideration when it comes to enlisting their services. Usually, the more experienced the Attorney or Advocate, the more they would charge. Another aspect that affects costs is the nature of the expertise of the Advocate or Attorney. If the issues in your matter are highly technical and complicated, an Advocate or Attorney with expertise and experience may charge more.

What about the personality of the Advocate or Attorney?

Many may discard the Advocate or Attorney’s personality as not important. However, it is essential to note that it may be time to change lawyers if you do not get along well with the Advocate or Attorney because of their personality. A lawyer and their client would develop a professional relationship in family law matters. This is especially so when the lawyer must discuss many personal issues regarding you, your marriage, children, finance, spouse etc. If you cannot get along well with your Attorney or Advocate, you may not divulge important information relevant to your case.

What is our best advice to a client looking for an Advocate or Attorney in a divorce matter?

Considering all the factors mentioned above, before enlisting the services of an Advocate or Attorney, ensure you enlist the right one. Do not look for the most experience or best, or the top one in family law. You may have to change lawyers if you do so and cannot afford legal bills. Therefore consider the above and any other factors that you may consider necessary when deciding on enlisting the services of an Advocate or an Attorney. Best of luck.
Posted on by Telelaw

Best advice on finding a top divorce lawyer for your divorce case in Constantia – Cape Town

Do you live in Constantia, and are you considering divorcing your spouse? Or have you been threatened with divorce? Either way, a divorce is a legal matter, and it is best to find sound legal advice or assistance. Furthermore, divorcing someone has potential severe legal consequences you may not know of. The first consequence, of course, is that you are no longer married to your former spouse, and there is no legal obligation to maintain each other (unless you qualify for alimony). You may also not inherit from your former spouse’s intestate. Lastly, and obviously, you are free to marry someone else.

However, do you know of the proprietary (property) consequences of getting a divorce? What about the assets and debt you and your spouse incurred in Constantia or elsewhere during your marriage? Do you know what should happen to it? If not, it is best you find out about these critical aspects and others before getting divorced.

Then there is the issue of parental responsibilities and rights after the divorce should there be minor children involved. This article aims to provide guidance on finding the best attorney or advocate for your divorce matter that can adequately and properly advise you or handle your divorce. The advice would apply whether you live in Constantia or anywhere else in South Africa. The issues we shall deal with are the following.

  • Gender of the Advocate or attorney;
  • Location of the Advocate or attorney;
  • Experience of the Advocate or attorney;
  • Costs of the Advocate or Attorney; and
  • The personality of the Advocate or Attorney.

What is the best gender of the Advocate or Attorney I need to use for my divorce? Is a male or female better?

Generally, the gender of your Advocate or Attorney should not play a role at all in a legal matter. However, depending on your background and the issues involved in your divorce, you may prefer a specific gender where you may feel more comfortable. A female who has been emotionally, physically and psychologically abused may be more comfortable with a female Attorney or Advocate. However, the same female client may prefer a male Advocate or Attorney. No more will be said on this issue.

What is the ideal office location of the Advocate or attorney? Does it have to be in Constantia?

The location or office of your attorney or Advocate is essential if you wish to consult with them in person. It is also ideal, but not necessary, for their offices to be close to the Court where the divorce would be handled. However, many lawyers make use of correspondent lawyers for this purpose. Furthermore, location should not be an issue if you want a specific lawyer to handle your case. This is so especially seeing that people are making use of virtual meetings.

What level of experience should the Advocate or attorney have?

It is important to remember that not all legal matters require the best lawyer. If your divorce is straightforward, finding the best lawyer in the field is unnecessary. The best may be very busy and lack the time to give your case the attention it deserves. However, if your matter is complicated, then in that case, the most experienced and best lawyer out there is not warranted.

What about the Costs of an Attorney or Advocate?

For many, the costs of the Attorney or Advocate are the most crucial consideration when it comes to enlisting their services. Usually, the more experienced the Attorney or Advocate, the more they would charge. Another aspect that affects costs is the nature of the expertise of the Advocate or Attorney. If the issues in your matter are highly technical and complicated, an Advocate or Attorney with expertise and experience may charge more.

What about the personality of the Advocate or Attorney?

Many may discard the Advocate or Attorney’s personality as not important. However, it is essential to note that it may be time to change lawyers if you do not get along well with the Advocate or Attorney because of their personality. A lawyer and their client would develop a professional relationship in family law matters. This is especially so when the lawyer must discuss many personal issues regarding you, your marriage, children, finance, spouse etc. If you cannot get along well with your Attorney or Advocate, you may not divulge important information relevant to your case.

What is our best advice to a client looking for an Advocate or Attorney in a divorce matter?

Considering all the factors mentioned above, before enlisting the services of an Advocate or Attorney, ensure you enlist the right one. Do not look for the most experience or best, or the top one in family law. You may have to change lawyers if you do so and cannot afford legal bills. Therefore consider the above and any other factors that you may consider necessary when deciding on enlisting the services of an Advocate or an Attorney. Best of luck.

Related Post

Changing your matrimonial property regime from in community of property to out of community of property

Are you married? Do you know what is your matrimonial property regime?

To register your Antenuptial Contact, Click here. Are you married in Community of Property? Do you want to change your matrimonial property regime to Out of Community of Property? Did you not know that a marriage Out of Community of Property was possible when getting married? There is legal relief for you and your spouse.

In Community of Property

All civil marriages are automatically In Community of Property.  This means that there is one estate shared between wife and husband. Therefore, if anyone of the spouses incurs a debt, that debt belongs to both of them.

Out of Community of Property

The other option is to get married Out of Community of Property. This means that there are two separate estates and each party is responsible for his or her own debt. For some people, this would be a better option, especially if you are a business person.

Accrual system

The usual process to be married Out of Community of Property is to enter into an antenuptial contract before the marriage. The contract will have clauses in it stating:
  • That there shall be no community of property;
  • That there shall be no community of profit or loss; and
  • That the accrual system provided for in Chapter 1 of the Matrimonial Property Act, no 88 of 1984 is expressly excluded from the marriage.
However, if you did not do so, there is a way of changing your matrimonial property regime from In Community of Property to Out of Community of Property. For this, you need the consent of the High Court in your Jurisdiction. Here you will make use of section 21 of the Matrimonial Property Act 88 of 1984.

Getting the High Court’s Consent to change your matrimonial property regime to Out of Community of Property

Once you and your spouse have decided to change your matrimonial property regime to Out of Community of Property, you would need to approach the High Court in your area for consent. If you know the law, legal process, Court rules, and procedure, you and your spouse can do it on your own. If you cannot do it on your own, an attorney would be able to do it for you. This the attorney may attend to with or without the assistance of an Advocate.

Drafting a post-nuptial contract

What they do is draft a post-nuptial contract for you which would outline what matrimonial property regime you want and also how the joint estate should be divided.

Application to the High Court for consent to change your matrimonial property regime to Out of Community of Property

Then they draft a Notice of Motion (notifying the Court what you want) and Founding Affidavit (your affidavit outlining your case etc.). Your case must satisfy the Court that:
  • There are sound reasons for the proposed change of the matrimonial property regime;
  • There has been sufficient notice to creditors regarding the proposed change; and
  • No other person will be prejudiced by the proposed change.
If, however, you cannot make a case for the above, your application may be unsuccessful.

Costs involved in changing your matrimonial property regime

As stated, you have to approach the High Court for consent to change your matrimonial property regime. There, therefore, would be the costs of an attorney who may instruct and advocate, and further costs in drafting and registration of the postnuptial contract. Furthermore, there is advertisement cost involved as you would have to give notice in the Government Gazette and in one or two local newspapers. You would further have to serve your application on the Registrar of Deeds and give notice to your creditors via registered mail. The total costs can range from R 25 000 – 00 should your matter be straight forward, to R 30 000 – 00 should it be more complicated.

Complicated applications to change your matrimonial property regime to Out of Community of Property

Complicated would mean the joint estate has many creditors. Furthermore, there may be many assets in the joint estate that needs to be divided, especially if they are not easily describable. The above-mentioned fee is obviously dependent on your application not being opposed by any interested party. One reason for opposing the application could be that the Joint Estate is deeply indebted to a creditor, and she feels that her claim would be prejudiced by the proposed change. Should your application be opposed for any reason, many more hours will be spent fighting for the success of your application which could costs you a small fortune and you may even be ultimately unsuccessful. Therefore, you would need to advise your legal team of all relevant facts before the application is made.

Time estimates to change your matrimonial property regime to Out of Community of Property

The estimated time in preparing your application, your post-nuptial contract and ultimately obtaining consent from the High Court is about 4 weeks. This is also dependent on whether or not the High Court is sitting within 4 weeks after the drafting of your application. If the High Court is in recess, a few extra weeks may apply. The Court may also want a report from the Registrar of Deeds which could cause delays.

Registering the postnuptial contract

Once your application is successful and the High Court, therefore, gave consent, you will usually have 3 (three) months to register the postnuptial contract. So once consent is granted, you need to see a Notary Public before whom you will sign your post-nuptial contract and then have it registered. This, therefore, needs to be done within the three months of obtaining the consent of the High Court.

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Parental Rights of Divorced Muslim parents who were only married in terms of Muslim Rights (Updated)

When Muslim parents divorce, either via a Talak or Faskh, there remains the unresolved issue of their respective parental rights and responsibilities to their children. In other words, with whom should the child reside, and what type of visitation rights should the other parent have? Then there is the issue of child maintenance, parental guardianship consent and so on. Parents married in terms of South African civil law have the advantage of having the civil divorce court deal with the issue of access (contact) and custody (care). The civil divorce court is obliged to do this before pronouncing a final decree of divorce. This is however not the case of a Talak or Faskh. As you would see later, we suggest that Muslim divorced parents enter into a parenting plan.

Divorced Muslim Fathers’ parental rights

Muslim fathers, who were married in terms of Muslim Rites, have just as many rights as the mothers, to their children. This is so notwithstanding them having been married in terms of Islamic Rights only (and not civilly). From a South African Legal perspective, they are both co-holders of parental responsibilities and rights with regard to their minor children. What often happens is that one parent refuses the other reasonable contact to the child after the divorce. Or he or she may take the stance that he or she is the sole decider as to where and when the other parent may have contact with the children. This is not lawful and clearly not in the children’s best interests. The end result is, for example, the father takes the mother to the High Court, or the Children’s Court and the Judge or Magistrate confirms the father’s rights which he had all along. This can turn out to be very expensive, and draining on the children and parents alike. Attorneys and Advocates may be used and simple issues get battled out in the public domain. A more responsible approach needs to be followed which is suggested next.

What should Muslim parents do after they separated?

Should parents who were married in terms of Muslim Rites and have a child or children together, separate, it is suggested that they, as soon as possible, try to agree on a parenting plan and have it registered with the Office of the Family Advocate or have it made an Order of Court. This option became available since 1 April 2010 with the coming into effect of section 33 of the Children’s Act 38 of 2005. If a parent refuses to try to agree on a parenting plan, the Court needs to be approached if issues cannot be resolved. This situation is best to be avoided. The parenting plan would be a document which the parents themselves decided upon and not dictated to them by the Court. Of course, the parenting plan has to be in the child or children’s best interests. By parents following the parenting plan route, they would keep their personal issues out of the realm of the Court and concentrate on being the best parents they can be for their children. This is so, notwithstanding their relationship with each other has severed.

Drafting a Parenting Plan

A well-drafted parenting plan would provide for issues, starting from the date of its drafting, until the children are adults. Suppose the children are toddlers when the parents separated; the parenting plan would need to deal with issues that could arise when it comes to schooling, extramural activities and issues of consent for a passport and so on. As the child gets older, he or she may want to spend more time with the other parent. This needs to be dealt with in the parenting plan, if applicable. The parenting plan can also make reference to a parenting facilitator or coordinator to assist the parents in resolving disputes in the future.

Who can assist you with a parenting plan?

Social workers, psychologists and family mediators are well suited to assist parents with parenting plans. Other suitably qualified persons would be attorneys and advocates. If the person has the necessary training and experience to assist you, we advise that you make use of him or her to assist you in obtaining a parenting plan. We are certain that you found the above article useful and interesting. Please consider sharing it on the share buttons below. They include Facebook, Twitter, LinkedIn, WhatsApp, Gmail and more. Someone may find it useful as well. Should you require business advice or services, feel free to click on these links: Business SA | Private Legal | Envirolaws    
Posted on by Telelaw

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