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Choose mediation over litigation in divorce

By Georgina Crouth Time of article published Mar 16, 2020

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In a country where almost half of all marriages fail, and fewer than four in 10 unions are dissolved before their 10-year anniversary, your odds are just about even of getting married and staying that way till death do you part.

Many divorcing couples think they can go their separate ways, but they don’t consider the financial aspects. Although there are no winners in a divorce, the death of a marriage should not guarantee ruination. Personal Finance spoke to mediators, lawyers and a financial adviser about how to safeguard your and your family’s future by mitigating against some of the more damaging consequences of divorce.

Linda Matshoza, the head of the family law unit at Law for All, a legal insurance provider, says many people fail to grasp the repercussions of a divorce. “You accumulate a lot of assets during divorce and often, there are minor children involved. Divorces can be protracted and expensive, so our job is to manage negotiations to try to sort out the details for our clients by cutting out the attorneys,” says Matshoza.

Law for All’s policies offer unlimited mediation for its clients.

Mediation

As of March 9, the Rules Board for Courts of Law implemented an amendment forcing parties involved in high court lawsuits to declare whether or not they considered mediation prior to approaching the court. Attorneys are also required to confirm whether or not they advised clients to seek mediation. And before the parties are allowed to go to court, they must complete a “Form 27”, delineating the reasons why they believe the dispute cannot be solved by mediation.

Jackie Nagtegaal, Law for All’s managing director, says this is in line with international trends, particularly in family-related matters. “In the UK, access to the courts is seen as a last resort; and in Sweden, no family law cases go through litigation because of the hostility a court case can cause.”

Mitigating harm to children is one of the primary reasons Michelle Dommisse, director of Michelle Dommisse & Associates, chooses mediation over litigation in divorces. She says many couples divorce due to a breakdown in communication, and mediation helps set up a method of communication, which is for the good of their children.

“The mediator isn’t the negotiator - the couples negotiate the terms. The mediator holds the space, and each partner gets an opportunity to speak,” she says. “Mediators act in the best interests of the kids. I guide the couples along those lines - create a structure for the kids to be comfortable. I never take sides in the relationship: my clients are the children.”

Dommisse says divorce has become a knee-jerk option for couples, so during the first consultation she asks whether they’ve gone for therapy and whether there’s a prospect of renewal. “They must be 100% sure they want this, because everyone gets poorer in the process. You run two households - children require certain basics in each household - and if people are already struggling financially, divorce will worsen the pressure. It’s certainly not a quick-fix,” she says.

Dommisse says she always asks about a couple’s wills, because if one parent dies, the surviving spouse should not have to claim maintenance from the estate. “Most people die without wills or there is very little in their estate, so the surviving spouse has to provide everything.”

Level-headedness - and skilful financial planning - are essential to the divorce process. Lee Hancox, the head of channel and segment marketing at Sanlam, warns against the temptation to rush through the process. You might want to get out of the emotionally stressful scenario as fast as possible, but it can be risky. “What you might be putting into your divorce agreement could be called into question when you get into the divorce court or it could be to your detriment in the long run,” Hancox says.

Financial advice

Financial advisers should be part of the process, she says, because they’re not just there to sell policies; they’re there for your entire financial journey. “I’m a strong believer in tapping into financial advisers. They have great contacts too.”

Updating your will is crucial. In terms of the Wills Act, if you don’t update your will within three months of a divorce and you die, your ex-spouse automatically inherits from your estate. “Your planner will know this and make sure it gets done,” Hancox says. “You wouldn’t want your family fighting after you die. If you die intestate, it can take months or years to wrap up your estate. It’s so important to have a proper will that is executable.”

She also advises working with your adviser to consider setting up a testamentary trust for your children to ensure the assets you’re leaving to them are appropriately managed.

Matshoza says although the divorce decree is binding on the parties, it’s not on the bank with which you have a mortgage bond. “The ex-spouse might commit to paying the bond, but the bank might not allow it.”

Debt is the elephant in the room. If you were placed under debt review during your marriage, both parties are affected, so your debtors must be notified and a new application made to the court. “We really do need to manage expectations and look at the consequences of divorce. Knowledge is power and people must be better informed. That’s not to say you shouldn’t divorce, but you should go into it with your eyes open,” Matshoza says.

PERSONAL FINANCE 

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