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Divorce and Family Law

Divorce and Family Law

Divorce and Family Law

Divorce Procedures in South Africa

Expectations

Understanding what to expect when divorcing can mean the difference between accepting your Divorce Attorneys’ advice and understanding what and why your Attorney is saying something so that you can see the bigger picture.

It’s also important to understand your rights and obligations with regards to the divorce procedures and how your spouse, children and your finances fit together during the divorce process.

Summons

When you are ready to proceed with the divorce and you have instructed your Attorneys to go ahead and issue summons, your Attorney will ensure that the summons is issued out of a Court that has jurisdiction to hear the matter. Details of your claim are attached to the summons and are called the Particulars of Claim.

Sheriff of the Court

Summons can be issued out of a Regional Court or High Court that has jurisdiction. The summons will then be taken to the Sheriff of the Court who must serve this document on your spouse. Service must be personal, except if the Court gives different direction in cases such as edictal service or substituted service.

Once the summons has been served on your spouse, they normally have 10 working days to file a Notice to Defend the matter. If they fail to defend the divorce, you can ordinarily get what you asked for in your Summons and Particulars of Claim. This is called Judgement by Default.

Uncontested or Unopposed Divorce

Should you and your spouse be in agreement regarding the terms of the divorce, it is known as an unopposed divorce or an uncontested divorce. It is not an uncontested divorce if there is any dispute whatsoever. If you agree to the division of the estate, but you are still not in agreement with regards to primary residence of the minor children, then the divorce is not unopposed, but is in fact an opposed divorce. 

It is standard practice to prepare a settlement agreement where all the terms has been agreed to by the spouses. If the matter is unopposed it can go to Court within weeks and the matter can be finalised. Where Minor Children are involved, the settlement must also go to the Family Advocate for endorsement.

A default judgement is a form of uncontested divorce.

What needs to be considered before you decide to go ahead with an unopposed divorce?

Most people strive to have an unopposed divorce as these are much cheaper than an opposed divorce and because an unopposed divorce can be finalised in weeks.

However, we find that one party is normally in a weaker financial position or does not know the extent of the other party’s assets. If the matter is unopposed you may never find out about all the assets of the other spouse.

If there are substantial assets, pension funds, retirement annuities, businesses or minor children involved, it is normally better to investigate what your rights are before you simply agree to something just to get the divorce finalised.  Stopping the pain on the short term, just to get divorced, may have considerable and long lasting negative effects that cannot be changed after the divorce.

Contested or Opposed Divorce

A divorce is contested when one or more aspects relating to the divorce is in dispute, whether it is child maintenance or the value of the family business.  The divorce cannot be finalised before agreement is reached on all the aspects or alternatively, if agreement cannot be reached, then the Court will have to adjudicate the matter.

The Five Steps of Divorce Procedures

Preparation

This is the first consult and subsequent gathering of information. The party that is best prepared normally has the best outcome in a divorce as only a low percentage of divorces go to trial. It is all about strategy and preparations.

Filing of Pleadings

Many Clients are frustrated by the slow progression of their matters until they understand the time periods imposed by the Court Rules. Standard Pleadings may include summons, notice to defend, plea and counterclaim, plea to counterclaim, discovery notices, expert notices and the like. Time periods imposed by the Court Rules are normally between 10 and 20 work days – and these must be adhered to; there are no short cuts.

Settlement Talks

As specialised Divorce Attorneys we attempt to settle our Clients’ matters. This is the reason for the low percentage of cases going to trial. Some cases are easy to settle and even after a few letters these matters can become settled. When a matter becomes settled, it is placed on the unopposed Court roll and can normally be finalised within a few weeks.

Often times, you have to prepare for trial to discover hidden assets or get the Family Advocate involved to investigate issues regarding the children in order for the matter to become settled.

Habitually, matters that seem unable to settle, will become settled on the first day of trial.

Discovery

Discovery plays an integral part of the divorce procedure as the value of assets and liabilities, income and expenses must be determined. Frequently, assets are undervalued or businesses that have traded for decades suddenly become insolvent. This must be thoroughly investigated and the Court Rules makes provision for the discovery process. 

Trial

Trial is the end game for most. The Court will hear evidence from both sides and make a decision that is binding on both spouses. A typical trial can last from one day to several weeks.

Take the next step to resolving your issue by calling us on 011 875-4311 or by booking a Consultation and we will be in touch.