Divorce is almost always a painful experience for all involved and is usually not a decision that comes easily. Research suggests that divorcees have contemplated divorce long before initiating the legal process of divorce. Statistics South Africa (2015) indicated that 25 260 divorces were completed during 2014 and that children were involved in most of them.
Once a partner (the divorce initiator) informs the other partner that he or she wants a divorce the first thing they do; or the first advice they receive, is to get themselves a lawyer who can take care of the situation. Whilst it is not wrong to get a lawyer to represent you, there are other options to keep in mind. Many people are not knowledgeable about the law, especially the Children’s Act 38 of 2005 which provides guidelines as to how to go about a divorce when children are involved.
Litigating a divorce implies that the divorce process is managed by lawyers and that disputes will be settled by lawyers and the judge. Most people who divorce, decide to litigate as they are unaware of other options. Litigation can be a very costly and time consuming process. The outcome of the divorce is then decided by a judge or commissioner. Disputes that are usually litigated includes, the care and contact of children, spousal maintenance and the division of property. Litigation can be an emotional draining and stressful experience for all parties involved.
The Children’s Act 38 of 2005, section 33 (2) states that whenever a child is involved in a divorce and parents are in disagreement with regards to aspects concerning the child, it is compulsory for parents to first attempt to mediate the issues before going to court. What does it mean to mediate the issues?
Mediation is a voluntary process which means that it cannot take place unless both parties (or parents) are willing to attend sessions and to provide their cooperation. The process takes place out of court which means it is not litigation- it is not a fight that someone can win. Mediation involves the two parents and a mediator talking about the disputes between the parents with the aim of coming to a reasonable agreement with which both parties are satisfied. After a conclusion has been reached the mediator draws up a parenting plan which stipulates what exactly the parents have agreed on. The parenting plan is then signed by both parents as well as by the mediator. This document can then be sent to court; which makes it a court order, or it can remain a gentleman’s agreement between the parties involved.
Mediation has several advantages:
- It is a lot cheaper than litigation as it occurs outside of court.
- Mediation is done by a person whose goal is to help parents reach an agreement, whilst litigation is usually fuelled by conflict and demeaning statements and threats; such as “I will make sure you will never see the children again” etc. These threats contribute to the emotional turmoil the persons involved are already experiencing.
- Mediation’s goal is to minimize the conflict and to shorten the divorce process.
- Mediators usually aim to act in the child’s best interest (a prolonged litigation process fuelled by conflict and anger is not in the child’s best interest)
- The mediator is a neutral, objective person who has nothing to gain from the process other than to help people resolve their conflicts.
Difference between divorce litigation and divorce mediation:
- Litigation is considerably more expensive than mediation
- litigation mostly puts the children in the middle of the conflict whilst mediation aims to protect children from the conflict by parents resolving disputes in a conflict free environment
- if you mediate the issues the outcome is determined by both parties, whilst with litigation the outcome is decided by a judge
- the mediation process is determined by parties involved, the litigation process is influenced by the lawyers’ availability as well as the judges. These cases are often postponed and can take years to settle.
- parents are able to voice their concerns and issues face to face and can therefore resolve issues and reach an agreement quicker – this also gives parents a sense of satisfaction as they were directly involved in the outcome
- divorce litigation can be emotionally draining, mediation provides a non-threatening and non-conflict environment in which to resolve disputes.
Care and contact investigations
If mediation fails; and parents are unable to agree on child rearing issues, a care and contact investigation can be done. This is also a process that occurs outside of court and is conducted by a neutral and objective person. The aim of a care and contact investigation is to ensure that the child’s needs come first and to help parents gain insight as to what decision would be in the child’s best interest. This investigation can be done with regards to the care of a child or contact rights of a parent or any other person of interest. In most divorce-related-situations, parents are often so blinded by their own anger, hurt and needs, that they do not realise that their decisions can cause the child to experience a lot of pain and that it may have a negative long-lasting effect on the child’s development and wellbeing.
A care and contact investigation:
- is done by a professional; such as a social worker or psychologist who has knowledge on the Children’s Act 38 of 2005 as well as knowledge on the divorce process
- is also done by the Family Advocates
- may include sessions with the child, parents and any other relevant person
- is a voluntary process; as both parents need to give their consent and need to cooperate
- offers both parties feedback regarding the outcome after the process is completed
- may result in the social worker; or person conducting the investigation making certain recommendations which can be used in court
Both the mediation process and the care and contact investigation aim to minimise conflict and to put the child’s needs first. By choosing one of these processes; parents are able to maintain a civilised relationship with each other and to minimise the negative effect that divorce may have on the children involved.
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