It is estimated that four out of 10 marriages end in divorce even before their 10th anniversary.
Despite the divorce process being both emotionally and financially draining, the legal process is quite straightforward.
The divorce process, as with most legal actions, is initiated with a summons. Summons will be issued out of the court which has jurisdiction (the area in which you or your spouse are domiciled).
With the enactment of the Regional Courts Amendment Act 31 of 2008, parties now have a choice on whether to issue summons out of the High Court or alternately out of the regional court.
Once the summons has been issued by the court, the sheriff of the court will serve the summons on the defendant personally.
Once the summons has been served, the defendant has 10 working days to oppose the matter.
There are typically two ways in which divorces are dealt with – either on a contested or opposed basis, alternatively on an uncontested or unopposed basis. The latter type of divorce is the best and most cost-effective for all parties concerned.
An uncontested divorce can also be finalised much quicker.
In an uncontested divorce, the parties work together to agree on the terms of their divorce. In such circumstances, the parties will agree prior to the divorce on how to divide their assets and liabilities and, if there are children involved, how the specific parental responsibilities and rights of each parent relating to the children will be dealt with.
A settlement agreement is then drafted, usually with the help of an attorney, signed by the parties, and made an order of the court.
A contested divorce is by far the most costly and time-consuming type of divorce. A contested divorce could take up to three to five years, depending on the issues in dispute.
Parties exchange pleadings and thereafter all documents, photographs and other evidence which they wish to use at the trial are collected and then the matter will be set down for trial for all of the evidence to be lead in court.
The marital regime of the parties determines how the assets and liabilities will be divided upon dissolution of the marriage.
The spouse wishing to end the marriage must issue a summons against the other spouse and show that the marriage relationship has irretrievably broken down and that there is no prospect of restoring the marriage relationship.
The summons must allege the marriage regime and if the matter is contested the plaintiff will ask the court to deal with the division of the assets and liabilities based on the specific type of marriage regime.
If the matter is uncontested this will be stated in the summons and a copy of the settlement agreement will be attached to the summons.
The summons must also set out what the plaintiff is claiming with regards to the parental responsibilities and rights of the parties in relation to any children of the parties.
In making an order for divorce, the court has the discretion to award one of the parties to pay the other’s legal costs. These costs will be limited to legislated tariffs which have to be taxed by the taxing master of the court.
This article was written by Lauren King, candidate attorney of Malherbe, Rigg and Ranwell. Contact them on 011 918 4116.
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