Separation Agreements and Divorce

Legal separation does not exist as a common law in South Africa. As such, it has no legal status. Under the laws of South Africa, one can either be: Unmarried; Married; or Divorced. 

Generally speaking, the process of applying for a legal separation follows a similar procedure as filing for a divorce. Both procedures require the assistance of an attorney, divorce lawyers and courts to draw up separation agreements, and legalise a separation or a divorce. 

What’s the difference between Separation and Divorce?

A divorce is the legal dissolution or termination of a marriage whereas a legal separation does not put an end to the marriage, but rather enables spouses to live separately yet still remain married. I.e. Separation means that the individuals are still married in the eyes of the law. 

So the key aspect of being separated as opposed to divorced, is that when a couple is separated, they are still seen as legally married in the eyes of the law. This also means that while separated, one cannot remarry. 

There are four types of separation, all of which would precede a divorce:

1.    A trial separation – where a couple tries out living separately for a while. 
2.    Living apart – where a couple decides to live apart for an extended period of time.
3.    Permanent separation – where the couple decides to split up and permanently live apart but do not make it legal.
4.    Legal separations – where the couple decide to split up, live apart and make it legal with a court order. 

Legal separation agreements

Separation agreements cover all issues that would be covered in a final decree of divorce. The legal court order for a separation will outline the rights and responsibilities of each spouse during the time that they are living apart.  

Therefore the following issues can be addressed:

•    Division of assets;
•    Division of debts;
•    Custody of children and visitation schedules;
•    Child support;
•    Spousal support; and 
•    Any other matter that needs statement

A legal separation can protect the interests of both parties until the decision to file for divorce is made.

Experts have commented that being legally separated is similar to divorce in that they share a similar workload. Aspects of married life such as children, distributing possessions including assets and debt have to be organised in a similar way.  

Is divorce the next step?  

A legal separation acts as a precedent for a divorce, should the couple decide to dissolve their marriage. If this were to occur, the judge would assume that since you were satisfied with the separation agreement, it would be appropriate to carry over the settlement terms that were agreed upon during the separation. 

This is why it is of the utmost importance to ensure that both parties are content with the settlement agreement at the separation stage. The terms of the separation are very likely to remain the same when entering into a divorce. 

If a couple holds out hope of getting back together, then it may seem a futile fight when trying to resolve conflict over settlement agreements in the separation stage. 

However, if one agrees to unsatisfactory terms in the separation stage, they may well have to live with their decision for the rest of their lives. 

If, however the terms of the separation agreement were not workable during the separation period, then it is possible (though an arduous process) to petition the court to draw up a new divorce settlement agreement. 

Thus, a legal separation agreement can be utilised as a learning tool to find out what conditions the spouses can and cannot live with after the divorce. 

There are six advantages to legal separation over divorce

1.    It allows couples time apart. 

Sometimes all one needs is time away from the conflict to act as a cool down period and decide what is best for oneself and their family. 

2.    It allows the retention of medical and certain other benefits, which divorce would bring to an end. 

Separation may be a better option for couples who are struggling financially and for mothers who have been out of the workplace for extended periods of time. It allows an opportunity to become more financially stable.

3.    If ones religious beliefs conflict with the idea of divorce, couples may live separately and yet retain their marital status for religious beliefs.
4.    If one is a military spouse, there are benefits available to those who remain married for 10 years or more (set up by the Uniformed Services Former Spouse Protection Act).  Be aware that, as in civil cases, judges have great discretion when it comes to the splitting of assets such as retirement income during military divorce. 

5.    Remaining married for 10 years or more also allows for couples to take advantage of certain social security benefits for a spouse. 

6.    If divorce is the final decision, the legal separation agreement can be converted into a divorce settlement agreement. 

Van Deventer and Van Deventer incorporated - Divorce Lawyers Johannesburg

Van Deventer and Van Deventer Incorporated is willing and able to supply you with all the legal guidance and advice needed to navigate any procedure concerning separation, separation agreements and divorce. Contact us for expert legal advice.


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