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Mediation in divorce
It happens from time to time in a divorce case that it becomes abundantly clear that neither party can really afford to run up unnecessary costs. The one attorney would send settlement proposals to the other attorney, and if they are not accepted the attorneys sometimes agree that a mediator be appointed to provide a neutral forum within which to debate and address the outstanding differences between the parties.
Normally if the issues are limited and simple the mediation would be fruitful.
Mediator's fees
The usual agreement relating to the mediator’s fees would be that the two spouses would each respectively bear one half thereof. This is only fair as the two parties would normally jointly appoint the mediator.
The costs of the mediator vary from mediator to mediator. A session is normally about an hour to an hour and a half long. The mediator would charge an hourly fee at rates similar to attorney rates, and would usually charge separately for drafting a final summary of the mediation process.
Attorney as a mediator
The mediator is usually an attorney who does not act in the capacity of attorney in the mediation. The mediator can if he/she chooses provide legal information, but plays a neutral, facilitative role, and does not advise in the same way that an attorney would.
Child custody issues
A common reason for parties in a divorce seeking mediation would be where they cannot agree on the rights of contact to the minor child(ren). A divorce sometimes takes quite long and instead of a party bringing a costly application to court for access (known as a Rule 43 Application) the parties would agree on mediation.
Settlment reflecting likely court judgement
The mediator would not make decisions for the parties, but would help the parties to explore options. Nobody really knows what a court would decide at the end of a legal matter, as each case and each Judge/Magistrate is different, but the mediator would try and encourage a settlement that the court would be likely to approve of.
Mediator must not be conflicted
A mediator may not act as such if he/she has previously acted for either party.
Confidentiality of mediation
The mediation, like a consultation with an attorney must be, is confidential and the mediator may not provide information to any third party.
Divulge all financial info
The mediation will only be successful if both parties are open and honest. All information must therefore be disclosed truthfully, particularly as regards finances. Sometimes the mediator may ask one or both parties to sign an affidavit wherein that party swears as to the accuracy of the information provided.
Mediation is a very worthwhile form of dispute resolution in a divorce matter. It may end up saving the parties quite a bit of money and time. It usually takes three or four sessions for the mediator to reach an agreement between the parties. The length of the mediation procedure would of course depend on the complexity of the matter, as each case is different.
Family, Estate & notarial legal services
Other divorce-related issues
At the beginning
Should I advise my spouse of the impending divorce action?
Should you move out of the matrimonial house prior to divorce?
Remove your spouse as a beneficiary on your Life assurance.
Divorce rule 43 for maintenance prior to divorce & divorce costs
Psychological issues
Marriage counselling to avoid divorce
Psychological impact of divorce on children
Child-related divorce matters
Mediation to resolve child custody and maintenance issues
Can a "band-aid baby" save a marriage?
Annexure A
If there are minor children involved, the divorce summons must have an Annexure A attached to it.
Custody of children upon divorce
Jurisdiction in child custody matter (e.g. if child moved to another province)
Joint decisions with respect to minor children
Using Rule 43 to apply for interim custody entitlement
Custody when there's been drug use.Child custody for the father
Custody granted to unmarried father
When a child won't see his/her father or mother
An unborn child when divorcing
Grandparents & divorce
When Grandparents want custody ahead of parents
Challenging the family advocate report
Child custody post divorce
Application to terminate your ex's parental rights
Splitting up siblings post divorce
Which parent decides the school to attend?
Child custody on death of a parent
Child custody following the death of a parent.
Guardians appointed by deceased parent.
Adoption of a stepchild
Maintenance for children
Child maintenance to what age?
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Divorce & maintenance considerations for a handicapped child
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Grandparents' maintenance & care obligations
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Application for maintenance reduction
Arrest after failing to pay maintenance
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Maintenance when your spouse remarries
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Abduction of a minor - Latest case law
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The international abduction of children from South Africa.
International divorces, children & overseas issues
Divorce when the children & spouse are overseas
Child contact rights for an overseas parent
When your child and ex move overseas - keeping contact
Other child-divorce matters
Handicapped children & the divorce rate
National register of those unsuited to working with children
Affairs
Affairs and their impact on divorce settlements.
Assets/debt and divorce
The duty to disclose your financials when divorcing.
Insufficent disclosure from a spouse on their assets/liabilities; the section 7 notice remedy (in terms of the Matrimonial Property Act)
Division of the joint estate in the event of a divorce.
- Antenuptial contracts
- When parties cannot agree on the accrual calculation; the court may appointment a referee to assist with the accrual calculation
- When parties cannot decide how to divvy the assets : The court may nominate someone to collect, realise and divide the estate (called a liquidator, receiver or curator).
- How affairs impact the division of assets on divorce
Movable assets - what to take if you move out.
Protection of assets using a trust
Divorce & pension fund assets
Divorce and pension fund payouts
Get your info directly from spouse's pension fund, not indirectly from your spouse.
Undisclosed Pension Interest at divorce results in amendment to divorce order
Pension interest in the accrual calculation, and the related tax liability
State pension fund is unconstitutional
Navy pension payout post-divorce
Property and divorce
Be careful with how you word the clauses about selling the property upon divorce
Should you move out of the matrimonial house prior to divorce?
Property in your spouse's name
When parents have rights to stay at the property you want to sell on divorce.
Life insurance, death & divorce
Life assurance actions you need to take when divorcing
Death in the middle of divorce
Divorce & future expenses
Divorce & Future medical expenses
Marriage (COP vs ANC), cohabition and Universal partnerships
Marriage in community of property
Short definition of a marriage in community of property
Forfeiture of benefits of marriage in community of property - Wijker v Wijker 1993
Kooverjee v Kooverjee
Rights for those in Universal partnerships
- Universal partnership: Asset sharing
- The distribution of assets from the dissolution of universal partnerships
Treatise on the Contract of Partnership: By Pothier ; with the Civil Code and Code of Commerce ... (1854)
Null declaration of customary union
Perjury & forgery
Divorce: Forging spouse's signature
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Annulment instead of divorce
What is annulment of a marriage?
What are the grounds for annulment of a marriage?
Divorce documents
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Sheriff letter for divorce summons
The final order of divorce
Divorce & the particulars of claim
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Change divorce order without court application
Non-compliance with a divorce order
Spangenberg & Another vs De Waal; Rule 43 order is set aside