DISCLAIMER : Please understand that the information provided below is a summary of the respective legal positions and does not cover all requirements relating to the topic and is not envisioned to bind us in any way.

1. My financial position has reached a stage where there is no possibility of me being able to pay me debts off. What are my legal options and what are my chances of success?

2. I want to divorce my husband/wife. If I leave the home that we both stay in before we get divorced will it count against me?

3. My husband and both want custody of our 12 year old child after the divorce has been finalized. Can our child decide who he wants to stay with and what factors do the court take into consideration?

4. I want to get divorced but I have not had contact with my husband for over 3 years now. I know that he resides in Durban somewhere as the last time that I spoke to his mother she stated that he had moved there 2 years ago. How do I get a divorce?

5. What factors do the courts take into account when they consider awarding maintenance to a party for any minor children in divorce proceedings?

“PRE-INSOLVENCY” POSSIBILITIES:

VOLUNTARY DISTRIBUTION: If all creditors should agree we can enter into a voluntary distribution with them. You would then tender payment of an agreed amount of money to our offices each month to which we will subtract our distribution fee as set out on the mandate and power of attorney to be signed by yourself, and distribute the remainder of the instalment pro-rata to your creditors in relation to the size of the claims of the various creditors.

MORATORIUM OF CREDITORS: One can try and convince all creditors that you are expecting to receive a sum of money from a source that could cover your debts. However, the success of this approach is entirely dependant on the consent and co-operation of the creditors.

ADMINISTRATION ORDER IN THE MAGISTRATES COURT: This option only will only partially affect your status however one can only use this option if your due debts do not exceed the amount stipulated in the Government Gazette which is at present R50,000.00. The courts will then grant an order to the affect that you will be liable to each creditor pro-rata for a specific amount of money each month.

SEQUESTRATION OPTIONS:

VOLUNTARY SURRENDER: This option takes the form of an Ex-Parte Application to the High Court supported by a Founding Affidavit by the Debtor. There are 4 formal requirements that must be complied with for Voluntary Surrender to be granted. These requirements can be summarised as follows:

(i) Must be factually Insolvent (may not have performed an Act of Insolvency);

(ii)Sufficient Assets in your free residue (remainder of the estate after Preferent Creditors have been paid) of the estate to defray all the costs of the Sequestration. The minimum amount that may remain is R10,000.00;
(iii) The Sequestration must be to the advantage of the Creditors;
(iv) All formalities in terms of Section 4 of the Insolvency Act must be complied with.

Voluntary Surrender has the advantage that no security for the sequestration costs needs be given to the relevant Master of the High Court. Any sale of your property in execution will be stayed in Law once the adverts have appeared in the Government Gazette and a local newspaper.

COMPULSORY SEQUESTRATION: This option is initiated by a creditor of your estate. An Applicant for the Compulsory Sequestration of a Debtors Estate needs to show that:
· That he/she has a claim which entitles him to apply for sequestration
· The Debtor is actually insolvent (liabilities exceed his assets, fairly valued OR that the debtor has committed an act of insolvency)
· Reason to believe that it will be to the advantage of the creditors that the estate is sequestrated.

Obviously this option is normally initiated by a Creditor and not by the Debtor and thus the Debtor cannot force a Creditor to apply for such sequestration. However, there is an application known as a “friendly compulsory sequestration” which is entails the same process as mentioned above except for the fact that the debtor in fact knows the creditor or has a relationship with the creditor and asks the creditor to apply for a compulsory sequestration. However, it must be disclosed to the court that it is a “friendly compulsory sequestration”.

All of the above avenues have important consequences and obligations and therefore your decision requires careful consideration. The effect of the sequestration options will however seriously affect your status and estate and should not be followed without thoroughly thinking things through.

The remedies listed in paragraph 1 are very much dependant on the attitudes of the creditors while the court has the discretion regarding those listed in paragraph 2. The courts will only consider exercising their discretion regarding the latter remedies after the Advantage to Creditors hurdle has been crossed.

If you pursue either of the insolvency remedies, you have the duty of full disclosure in utmost good faith to the Court and we will need all relevant information in order to properly draft the papers.

We will obviously guide you through the process and explain to you the necessary legal requirements that will need to be fulfilled in order to succeed in an Application for Sequestration.

Your husband/wife may allege that you leaving the common home was the cause of the breakdown of the marriage, it is likely that it is simply a consequence of the breakdown of the marriage rather than the cause of the breakdown. Never the less “fault” plays a very minor role in divorces since the 1979 Divorce Act, which moved away from a fault-based system.
If you do decide to leave the household, it is important not to remove any furniture or household goods without your husband/wife’s consent before the divorce order is granted is granted by the courts. You are also not free to come and go from the house as you please after you have left, unless you have the consent of your spouse.

Another important point to note is that many marital relationships are interrupted by the one spouse having an extra-marital affair. This will also not necessarily give you any advantage in the divorce proceedings because of non fault-based system that is relied upon.

There are a number of relevant factors if custody is in dispute. The preference of the child will be taken into account if he has the necessary intellectual and emotional maturity to make such a decision. There is no set age at which a child is deemed to be sufficiently mature. Every child is different when it comes to assessing maturity. It should also be borne in mind that it can place an unfair responsibility on the shoulders of the child to make him feel that the decision is being left to him. He may well experience feelings of guilt or betrayal towards the other parent. It is best left to a family counsellor, whether privately or at the Family Advocate's Office, to elicit the child's preference in a manner that is the least painful to him. Ultimately the deciding factor that the courts rely on is that decision that is made must be in the best interests of the child.

4. I want to get divorced but I have not had contact with my husband for over 3 years now. I know that he resides in Durban somewhere as the last time that I spoke to his mother she stated that he had moved there 2 years ago. How do I get a divorce?

In any divorce matter, both spouses are entitled to be notified of any pending action. Summons in divorce proceedings must be delivered by personal service on the specific party. This is ordinarily done by the summons served by the sheriff on the other party. As you have no address for your husband, this will not be possible in your case. However, the law allows you to make an application for what is called substituted service. This would involve the publication of your summons in various media/newspapers etc. in the area where you suspect him to be. The procedure can be expensive and you will require the permission of the court to undertake this course of action. It is always best to do as much investigation as possible in the area where you suspect him to be as well as contacting all his family in this regard. NB: make sure you keep all evidence of any investigations that you have made so that you can attach them to your application to the courts.

5. What factors do the courts take into account when they consider awarding maintenance to a party for any minor children in divorce proceedings?

Summary of the factors taken into account:
(I) CHILDRENS NEEDS
(II) AGE
(III) HEALTH
(IV) EDUCATIONAL NEEDS
(V) RESPECTIVE INCOME OF EACH PARENT
(VI) SOCIAL STATUS OF THE PARTIES
(VII) ANY OTHER FACTOR THE COURT FEELS IS RELEVANT

The childrens needs must first be established and then only is the parents contribution calculated accordingly based on their existing/prospective means as well as their financial obligations.
NB: Both parties are in terms of the common law obliged to maintain their children in proportion to his/her means.