The legal jargon used by legal practitioners is often confusing, used out of context or simply not understood. With the increasing number of marriages that end in divorce, some of these terms and phrases are often repeated at a weekend “braai” or other social event when people discuss their own divorce or that of a friend or family member. These “braaivleis” discussions often result in family law attorneys receiving telephone calls on a Monday morning, such as “my friend's sister is getting a divorce and her attorney says that……..”
Every divorce is different and there is unfortunately not a one size fits all recipe. Confusion and contradictory opinions and advice is often created by the incorrect use of legal terminology.
Some of the most commonly used terminology and role players encountered in divorces are explained below:
Plaintiff and Defendant: In any divorce action, the spouse who initiates the proceedings by issuing a summons for divorce is referred to as the plaintiff, and the other spouse is then referred to as the defendant.
Minor children: Minor children refer to all children below the age of 18 years. Minor children cannot make their own decisions; however, their views and wishes must at least be considered if they are of a sufficient maturity.
Attorneys/Lawyers: An attorney or lawyer is the legal representative that acts on either of the spouse's behalf. A spouse wishing to institute divorce proceedings usually approaches an attorney or lawyer to navigate him or her through the difficult time.
Advocate/Counsel: Attorneys/Lawyers appoint advocates, also referred to as counsel, to present a matter in court. An attorney can appear in the High Court of South Africa; however, advocates specialise in appearing in court and do not engage directly with the divorcing spouses without the attorney being present. An advocate's client is the instructing attorney, whereas the attorney's client is the divorcing spouse.
Family Advocate: The Office of the Family Advocate is a Government institution. When parties are embroiled in a dispute regarding residence and contact of minor children, the matter is referred to the Office of the Family Advocate for an investigation. The Office of the Family Advocate employs advocates with family law experience, as well as social workers who meet with divorcing spouses and children, whereafter they provide the court with recommendations in respect of care and contact.
Therapist/Psychologist: A therapist or psychologist is often appointed to provide emotional and psychological support to either the parties embroiled in a divorce, or the minor children affected in the matter. A therapist appointed to render therapy is not appointed for court purposes, but solely to provide emotional and psychological support.
Forensic Psychologist: A forensic psychologist is often appointed to investigate the best interest of minor children, by evaluating the parents and children and conducting psychometric testing. The forensic psychologist prepares a report containing a recommendation in respect of primary residence and contact.
Judge: A judge is the presiding officer that hears a matter in the High Court and makes court orders.
Magistrate: A magistrate is the presiding officer that hears a matter in the Magistrate or Regional Court and makes court orders.
Primary residence & Contact: Prior to the enactment of the Children's Act, the terms “custody” and “access” were used. In the Children's Act, these terms have been replaced with “primary residence” and “contact”. Primary residence refers to a minor child's primary home, which would entail the home where the minor child sleeps on a more permanent basis. The other parent is then awarded contact, which means this parent is entitled to exercise contact with a child on alternative weekends or as provided for in a Court Order.
The incorrect use of legal terminology can lead to extremely confusing scenarios. It is advisable for parties seeking a divorce to contact a respectable attorney to guide them through the process. Advocate Google has neither studied law, nor has it the necessary experience to properly advise anyone on a specific factual scenario.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
