LEGAL SEPARATION – SOUTH AFRICA

South African law does not specifically provide for a Legal Separation for married couples. In the eyes of the Law, a couple is either married or divorced. There is no in-between status that defines their union. Save of course if they have never married and are just Living Together. While there is no specific concept of Legal Separation, this does not mean that a married couple cannot live apart. It does however mean that until a Court pronounces them divorced, they are still deemed to be married.

For those couples who elect to live apart (whether for a short period of time or on a more indefinite basis) it is advisable for them to draw up a Separation Agreement to deal with their financial issues. The areas that a Separation Agreement would deal with are specific to the couple but could include among other things:

  • Spousal Maintenance
  • Maintenance for the Children
  • Medical Aid
  • School Fees
  • Marital Debt
  • Payment of the Home Expenses (Bond, Rates, Municipal Utility Bills, Service Provider Costs, and Upkeep of the Home)

In addition to the Separation Agreement, the Separating Couple may also need to enter into a Parenting Plan. The critical areas for their Parenting Plan to focus on would include issues such as:

  • The children’s residence
  • Each parent’s contact time with the children
  • Their decision-making regarding the children

On signing the Separation Agreement, the document would become valid and binding on the Separating Couple. The document would also as a consequence, be enforceable in terms of the Law of Contract. The effect of this being that a Spouse could approach the Court for assistance in respect of the other Spouse’s breach. In a nutshell, while South African Law does not recognize the status of Legal Separation, it would recognize the Separation Agreement and give force to it.

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