“You can't go back and change the beginning, but you can start where you are and change the ending.” (C.S. Lewis)

 
Divorce is traumatic, to the extent that it’s widely considered to be the second most stressful life event (behind only the death of a spouse, and ahead of marital separation and going to jail!). 

But if you’ve come to the conclusion that your marriage is so unhappy or toxic that you have no alternative but to put an end to it, you’ll need to know how to go about obtaining a divorce, and what your legal rights are.

The whole process can feel overwhelming, but it needn’t be. Here’s a clear, simplified overview, followed by a Q & A section to address some of the concerns and queries you may be grappling with.

9 common questions answered

Here are some of the most commonly asked questions. Let us know if you have any others!

1. Do I have grounds for divorce? Our law has since 1979 had a “no fault” concept, so all you must show is that your marriage has broken down irretrievably, with no reasonable possibility of reconciliation. Mental illness or coma are other grounds for divorce but fortunately they rarely apply.
   
   
2. How long does it all take? In an uncontested divorce (depending on how quickly you reach agreement, how busy the courts are, and a myriad of other factors) you should work on between two and three months. A complex contested divorce on the other hand could take years, particularly when fought bitterly through all the appeal courts.
   
   
3. How are our children protected? Parenting plans, care and contact, maintenance and schooling arrangements can and should be settled by agreement if possible. Otherwise, the Family Advocate’s office can help – it’s a free and impartial service, tasked with protecting the welfare of children through investigation, mediation, reporting and making recommendations to the court. If you are still deadlocked and leave it to the court to decide one way or the other, bear in mind that our courts always put your children’s best interests first – no exceptions.
   
   
4. What about maintenance for me and our children? Both of you must contribute to the reasonable financial needs of your children based on your respective financial positions, and child maintenance orders in favour of the parent with primary care (“custody” in the old terminology) are commonly granted. Orders for spousal maintenance (“alimony” in American legalese) are less common and depend on a host of factors. You may also be able to claim interim maintenance pending the divorce.
   
   
5. How much will this cost me? We can give you an idea of the likely cost based on whether or not the divorce is contested and the complexity of the issues involved. A simple, uncontested divorce will always be the least costly option. If the divorce is contested and you can’t afford to pay legal fees, you may be entitled to a contribution to your legal costs from your spouse. Sometimes, when granting a disputed divorce, a court will order one of you to pay the other’s costs, but the general rule is that each of you will pay your own costs. And of course you can always agree between yourselves who pays what costs. 
   
   
6. What assets will I get? What you are legally entitled to depends largely on whether you are married in community of property or out of community of property (with or without accrual), and on what your ante-nuptial contract (if you made one) says. The court also has wide discretion to order a redistribution of assets in your favour in appropriate cases – and of course you can agree between the two of you to divide assets any way you want. 
   
   
7. What if there’s domestic abuse? We’ll help you get an urgent protection order to keep you and your children safe. 
   
   
8. I really don’t want this to go to trial, how can I avoid that? Mediation is often an effective way to help parties reach an agreement on contentious issues. The reality is that most divorce disputes are eventually settled by agreement – if not upfront, then “on the steps of the court”, or perhaps only after battle has begun and everyone can see which way the wind’s blowing. 
   
   
9. How does Home Affairs know I’m divorced? We’ll help you send a certified copy of the divorce decree to Home Affairs to update your marital status on the National Population Register.

Talk to us if you’re considering divorce – or even if you just want to understand your options.

“Diplomats operate through deadlock, which is the way by which two sides can test each other's determination.” (Henry Kissinger)

Running a business with a partner can work brilliantly – until it doesn’t. When co-directors or shareholders fall out and can no longer see eye to eye, the company can grind to a halt, meaning everyone loses. 

If the “deadlock” is just the two sides playing diplomat by testing each other’s determination to fight to the finish, there’s a chance they’ll negotiate a settlement before the company actually fails.

But if you find yourself in a fatal stalemate, you should think of cutting your losses and putting your company out of its misery altogether. A recent High Court decision provides an excellent example of how you can do just that. 


The director disputes that destroyed a profitable business

The players in this unhappy saga were the 50/50 shareholders, and co-directors, of a small business importing tents from China. 

At first, their arrangement clearly worked well. But as time passed, they fell out badly over disputes relating to the terms on which their own businesses (one in Kenya, the other in South Africa) could buy tents from the importer.

Their own attempts to resolve things failed, and the seriousness of their quarrelling led to allegations of fraud and of unpaid debts, together with threats to have one director declared a delinquent director and attempts to bring a third director into play. 

A buyout attempt having failed, one of the directors applied for liquidation of the company. The other director’s fierce opposition rested on him asking for everything to be put on hold while he launched alternative litigation against his opponent.


But can you liquidate a solvent company?

Normally, only insolvent companies face liquidation, but the Companies Act allows courts discretion to order the winding up of a solvent company (a company able to pay its debts) in a range of circumstances. Three of those grounds for liquidation are relevant here:

1. There is deadlock between the directors in the management of the company and the shareholders are unable to break the deadlock, resulting in or threatening irreparable injury to the company, or
   
   
2. The result of the deadlock is that the business of the company cannot be carried on to the advantage of the shareholders generally, or
   
   
3. It is otherwise “just and equitable” for the company to be wound up.  

Past the point of no return

In granting the liquidation order, the Court found that the relationship between the directors had broken down irretrievably, and the resulting deadlock had reached the point of no return. The shareholders would be unable to break the deadlock and that had resulted in irreparable injury to the company. Its business could not be conducted for the advantage of shareholders.

The Court went further, holding that in any event it was just and equitable to order winding up. The mutual trust and confidence between the shareholders had been destroyed, there had been a complete breakdown of relationship between the directors and shareholders, and the company’s “substratum” (fundamental reason for existence) had disappeared. 

Prevention is better than cure

When you co-own a company, especially if it’s split 50/50, stalemate is an ever-present risk. If this happens and you can’t agree on how to buy each other out or on how to break the deadlock, you could lose the entire business.

Prevention being better than cure, good planning upfront is essential. So, if you run or plan to start a business with partners, make sure that your shareholders’ agreement and other documentation includes clear and workable mechanisms for avoiding dispute, and for breaking deadlock if it occurs. 

Common solutions are:

• As a way of hopefully preventing disagreements from arising, set out in writing clear boundaries as to each party’s contributions to the business, their roles in management and funding, profit sharing, obligations of good faith towards each other and to the company, and so on – every situation will call for different wording.
  
  
• Clauses to allow one owner to buy the other’s shares are essential, with a clear process for determining value and resolving any disagreement over price or terms.
  
  
• Provide for independent arbitration or mediation to resolve any disputes that may arise generally.

These safeguards are unfortunately no magic bullet, as witnessed by the inability of the directors/shareholders in this case to reach any form of agreement. This despite having deadlock-breaking mechanisms in their shareholders agreement, and despite their attempts at negotiation and mediation. 

But safeguards are a lot better than nothing, and they will most definitely reduce the risk of you both ending up in court, paying legal fees and being grilled in witness boxes while your business dies. If that happens, everyone loses.

Bottom line? Disputes happen, but they don’t have to kill your business. Speak to us if you’d like advice on your company’s structure, and for help in drafting a shareholders’ agreement that protects you both if things turn sour.

“You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.” (Lord Atkin in the groundbreaking 1932 House of Lords decision that found a soft drink manufacturer liable for a consumer’s shock and illness after she discovered a decomposed snail in the remains of her ginger beer.)

A simple burger night turned into an ordeal for a diner who swallowed a “needle-like object” hidden in her meal. The High Court’s confirmation that she can claim damages from the restaurant is a reminder of how strictly our courts hold businesses to their duty of care towards customers.

What happened?

The diner and her husband visited their favourite restaurant in Stellenbosch for burgers and a bottle of wine. Her relaxed night out turned into a nightmare when, halfway through her burger, she felt sudden pain and realised something was stuck in her throat. Panicking after she couldn’t get it down, she rushed to the bathroom, coughing and noticing blood in the basin. A trip to the emergency room confirmed her worst fears: X-rays revealed a “needle-like object” lodged in her oesophagus.

Despite emergency treatment and surgery attempts, she had to endure five days in hospital, repeated scans, and constant distress before the foreign object finally passed. She testified to the pain, humiliation and panic she experienced throughout the ordeal. We can imagine just how high her levels of anxiety must have been when she recalled the story of a family friend who died after swallowing a fish bone that punctured his intestines.


The law: Who’s responsible?

She sued the restaurant for damages, arguing that the business had a clear duty to serve safe food. The restaurant denied responsibility, saying it bought ingredients from trusted suppliers and followed standard food safety practices.

But the Court found that those defences didn’t hold up. The restaurant’s only witness wasn’t on duty on the night in question and could not say what safety checks were actually done. No staff testified about what happened in the kitchen or how such an object could have ended up in the meal.


Let the facts speak for themselves

In the end, the Court applied a well-known legal principle: If something happens that normally wouldn’t occur without negligence, like swallowing a sharp object hidden in food, the facts speak for themselves (“res ipsa loquitur” to lawyers). The business must then explain how it happened and show that it wasn’t at fault.

Here, there was no reasonable explanation. The restaurant controlled every step of the food preparation but failed to show how a foreign object could have slipped in without negligence. The business was found liable for all the harm suffered.

The key takeaways for businesses

This is a clear reminder that, in 1932 as today, if you serve the public, you have a duty to keep your premises and products safe. If something goes wrong, you must be able to prove that you took all reasonable steps to prevent harm. Fail to do this and you could be held liable for negligence.

We can help you check your supplier contracts, disclaimers and risk policies to make sure your business is protected. 

“Maintenance” or “Alimony”?

You’ll often come across the term “alimony” (from the Latin “alimonia”, meaning “nourishment” or “support”) in American movies and series. It also occasionally crops up in some older English law contexts such as P.G. Wodehouse’s wry comment that, “Judges, as a class, display, in the matter of arranging alimony, that reckless generosity which is found only in men who are giving away someone else's cash.” Our South African equivalent of “alimony” is “spousal maintenance” or “spousal support”.

“Maintenance” on the other hand is our law’s broad term for both spousal and child maintenance, “child support” being the American term for the latter.