Swemmer & Levin

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A DIY divorce in South Africa offers a cost-effective, simple option for uncontested cases but comes with risks like unfair settlements and asset division issues. This brief guide highlights the process, benefits, and potential pitfalls, underscoring the need for careful consideration to protect personal and family interests.

Understanding DIY Divorce

Can I do my own divorce in South Africa?
Yes, you can do your own divorce in South Africa if your case is straightforward and uncontested. It requires a mutual agreement between spouses on all divorce-related issues and a willingness to navigate the legal process independently. We refer to this as a DIY divorce.

How does a DIY divorce work?
A DIY divorce, or “Do-It-Yourself” divorce, is a process where couples in South Africa choose to handle their divorce proceedings without the extensive assistance of legal professionals. This approach is often considered the cheapest way to get divorced and is particularly suitable for an uncontested divorce, where both parties agree on major issues like asset division, child custody, and maintenance.

In a DIY divorce, couples must agree on all aspects of their separation, including the division of property, child custody, and maintenance arrangements. The process involves filling out legal documents and submitting them to the court. The duration of a DIY divorce can vary but is typically quicker than a contested divorce, often being finalised within a few weeks or months, provided there are no complications.

Pitfalls of a DIY divorce
While a DIY divorce might seem like a straightforward and cost-effective option, there are several pitfalls to consider:

Unfair divorce settlement
Without legal advice, understanding the laws governing the division of assets in South Africa can be challenging. Different rules apply depending on whether the marriage is in or out of community of property. A lack of understanding can lead to one party receiving an unfair settlement.

Child maintenance miscalculations
Child maintenance should be proportionate to what each parent earns and their capacity to contribute. In a DIY divorce, there’s a risk of incorrectly assuming that maintenance should be split equally, potentially leading to inadequate child support.

Child custody and visitation rights
Without proper legal advice, a parent might not fully comprehend their rights regarding child custody and visitation, resulting in arrangements that aren’t in the child’s best interests or are unfair to one parent.

Pension and retirement benefits
Dividing pension interests can be complex and, without legal guidance, parties might mishandle this aspect, leading to significant financial loss or affecting long-term retirement plans.

Debt responsibility
A common mistake in a DIY divorce is misinterpreting who is responsible for marital debts. This can result in one party unfairly assuming more debt than legally required.

Spousal maintenance
Determining the applicability and amount of spousal support can be complex. Without legal input, this could lead to unfair or inadequate support arrangements.

Divorce document errors
Filling out divorce paperwork requires attention to detail and an understanding of legal terminology. Errors can cause delays, additional costs, or unfavourable legal consequences.

Future legal disputes
If the divorce agreement is not properly drafted, it may lead to future disputes, incurring more legal costs and emotional strain.

Tax implications
Divorce can have significant tax implications, particularly regarding asset division and spousal support. Without legal advice, decisions made could result in unexpected tax liabilities.

While a DIY divorce can be the cheapest way to get divorced in South Africa, particularly in an uncontested divorce, it’s crucial to be aware of its potential pitfalls. Parties should consider at least consulting with a legal professional to ensure their rights are protected and the agreement is fair and comprehensive.

While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this publication, neither the writers of the articles nor the publisher will bear any responsibility for the consequences of any actions based on information or recommendations contained herein. Our material is for informational purposes.

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Jan Fourie

Director |  Attorney, Notary & Conveyancer | BA. LLB

Jan graduated in 1974 with a five-year BA LLB degree from the University of Stellenbosch, whereafter he was admitted as an advocate and prosecuted as such in the Cape Town and Wynberg Courts. In 1974, he joined Swemmer & Levin as the Candidate Attorney of Mr Levin (founding member) and was admitted as an attorney on 7 April 1976, as a conveyancer on 11 January 1978, and as a Notary on 19 December 1984. Since 1974, he has served in various committees, including the West Coast Chamber of Commerce, the Vredenburg School Committee, and the Malgas Lions Club. 

Furthermore, Jan was the author of the first bilingual law book, The New Debt Collecting Procedures (Die Nuwe Skuldinvorderingsprosedures), which was used by all the Magistrate Courts throughout South Africa. With the founding of the Small Claims Court in Vredenburg, Jan served as one of the first Commissioners. He is currently based at Swemmer & Levin’s Vredenburg office and has been with our firm for more than 47 years.

Pieter Smit

Director | Attorney & Conveyancer | BA. LLB

Pieter obtained his BA Law degree from Stellenbosch University in 1995 and his LLB degree from the North-West University in Potchefstroom in 1998. He served his articles at Marais Muller Attorneys from 1998 to 1999 and was admitted as an attorney in 2000 and as a conveyancer in 2002. Pieter is the founder of PP Smit Attorneys, which opened its doors in 2004. He also became a director of Swemmer & Levin in 2006. Pieter loves the outdoors and participating in all forms of sport, including tennis, golf, fishing, spearfishing, scuba diving, and hiking. 

Johann Maree

Director | Attorney | BA. LLB

Johann matriculated at Oudtshoorn High School and attended Stellenbosch University, where he obtained his BA Law and LLB degrees. Following his studies, he worked for three years as State Prosecutor at the Magistrate’s Court in Cape Town. Johann completed his legal training with the State Attorney in Pretoria and then moved to his hometown, Oudtshoorn, where he worked as a lawyer for a year. In 1983, he finally moved to Vredenburg and joined Swemmer & Levin, where he is still practising as a director. When he is not in the office, Johann enjoys cycling and in his earlier days, he used to be a long-distance junkie.

Richard Phillips

Director | Attorney | Bcom & BProc

After matriculating at Paarl Boys’ High School, Richard completed his BCom and BProc degrees at the University of Port Elizabeth. He served his articles with Van Wyk Fouchee in Paarl and quickly developed an affinity for litigation. Richard has always had a deep love for the ocean and when he was presented with an opportunity to join Swemmer & Levin on the West Coast, he agreed without hesitation and has been with our firm since 1997. Richard specialises in general litigation and divorces. When he is not in the office or with his family, he tries to spend as much time as possible in or on the water.

Jandré Smith

Director | Attorney | LLB

Jandré grew up and matriculated in the small Klein Karoo town of Oudtshoorn. He furthered his studies at the North-West University in Potchefstroom, obtaining his LLB degree during 2015. He completed his articles at Swemmer & Levin in 2017 and was subsequently appointed as a professional assistant. In 2020, Jandré was promoted to the position of director at the firm, where he practises in the Litigation department at our Langebaan office. When not practising law, Jandré is an avid sports fan. He has a passion for nature and enjoys camping, trail running, and mountain biking with his family.

Andre van der Walt

Director | Attorney | LLB

Andre graduated in 2015 with an LLB degree from the University of Pretoria. He later went on to obtain his NQF 7 Certificate in the Administration of Deceased Estates from the University of South Africa, which allowed him to further his career in deceased estates and the drafting of wills and trusts. Andre served his articles at Barnard & Patel Attorneys under the supervision of Mr YAS Patel. After being admitted as an attorney in 2016, he continued working at Barnard & Patel Attorneys as a professional assistant in the deceased estates department.

Andre joined Van Rensburg Attorneys in 2019 and was head of the deceased estates department until 2021. He then received the opportunity to move to the West Coast, where he joined Swemmer & Levin Attorneys. Andre loves travelling and enjoys the beauty that our country has to offer with his friends, family, and loved ones.

Harmann Potgieter

Attorney | LLB

Harmann graduated in 2018 with an LLB degree from the North-West University’s Potchefstroom Campus. He went on to study and grow in various fields, including doing a course on the Consumer Protection Act and a course at the University of South Africa where he obtained his NQF 7 Certificate in the Administration of Deceased Estates.

Harmann completed his articles of clerkship at Swemmer & Levin under the supervision of Mr Richard Phillips. After being admitted as an attorney in 2020, Harmann continued with Swemmer & Levin as a professional assistant in the deceased estates department as well as the litigation department. He loves to study, possesses a deep curiosity about the world, and is dedicated to giving back to the community.

Carla Cloete

Attorney, Conveyancer & Notary | LLB

Carla obtained her LLB at the North West University, Potchefstroom Campus in 2015. She completed her articles in 2017 with Brits Dreyer Inc in Bellville. She is an admitted Attorney, Notary and Conveyancer. After her articles she relocated to Kimberley where she worked as a professional assistant in the Conveyancing department of Van de Wall Inc. Coming back to her Western Cape roots, she now joins the Swemmer & Levin team as a professional assistant.