Under South African law, you are married, unmarried or divorced. If you wish to separate from your partner before instituting divorce proceedings, the separation has no legal status.
It is wise to consult an attorney should you wish to separate, to ensure that all bases are covered.
A couple should not separate for longer than six months and no shorter than two months. If you and your partner are not able to sort out your differences after six months then it may be wise to make a decision to get divorced. The separation agreement should also deal with living arrangements. One must look at what is in the best interests of the children. The party who has a better relationship with the children should continue residing in the matrimonial home. The lifestyle of the children should not be interfered with.
It is important in the agreement to stipulate all financial issues, for example who will pay for the bond, rent, electricity, groceries, children’s expenses etc. The agreement should also deal with issues of contact, for example how often a party should have contact to the children still residing in the matrimonial home. One should also discuss with your partner how often the two of you would have contact with each other. An agreement should be reached on meeting times and venues. Too much contact may interfere with the aim of the separation. One should also discuss whether the other party can visit without phoning first. It is advisable only to discuss the separation with close friends and relatives, and maybe teachers at your children’s school.
The question of dating is a threatening aspect of separation. If you allow your partner to date somebody else, they may like each other too much and this would lead to the dissolution of your marriage. This is very much a personal decision to be made between the married couple.
The separation agreement must be drafted in a very similar fashion to an actual divorce settlement agreement. It can be done verbally or in writing, but I would suggest that it is done in writing, particularly when there are children and substantial assets involved.
Particulars of claim -example