basics of a Divorce and FAQ
There are typically two types of divorces, the contested and the uncontested . The latter type of divorce is the best and most cost effective for all parties concerned, if the parties are able to settle. An uncontested divorce can be finalized in as little as 10 weeks. If a divorce is contested it may take between 2 - 3 years, but most contested divorces do settle before it goes on trial.
In South Africa, the marital regime of the parties determines how the assets will be divided upon dissolution of the marriage, the assets being those at the time of the divorce. In South Africa, we have a ‘no fault’ system of divorce, meaning that a divorce will be granted if one of the parties believes that there has been an ‘irretrievable breakdown of the marriage relationship’ and that there are no reasonable prospects of restoring it. Therefore, a marriage can be dissolved even if one of the parties does not wish to get divorced.
Civil marriages, civil unions and those religious marriages conducted by registered marriage officers can only be dissolved by order of the court. The spouse wishing to end the marriage must issue a summons against the other spouse, stating that the relationship has broken down, that there is no reasonable prospect of restoring the relationship and which matrimonial property regime governs the marriage. The summons must make provision for the division of the estate, either stating that the parties have entered into a prior agreement or asking the court to divide the joint estate or enforce the provisions of the antenuptial contract. Parties must also set out what the arrangements are with regards to any children born or adopted during the marriage.
The best option, if parties can make it happen, is to do a divorce in an uncontested manner. An uncontested divorce is one in which the parties work together to agree on the terms of your divorce. They will both consult with the same attorney, who will be unbiased and impartial or they will discuss the issues internally and instruct and attorney to draft and agreement and proceed. There is no formal trial. In an uncontested divorce, the parties agree prior to the divorce on how to divide their assets and, if there are children involved, which parent will become the parent of primary residence and which will be the parent of alternate residence. A settlement agreement is then drafted with the help of the attorney, entered into (signed) by both parties, and made an order of the court. An uncontested divorce is without a doubt the least expensive type of divorce.
When there are minor children involved or where there are substantial assets, retirement annuities or pension funds, it is advisable to seek the assistance of an attorney with family law experience , so that a comprehensive settlement agreement and parenting plan can be drafted and implemented. Going back to court after a divorce was granted to rectify mistakes made by you or an inexperienced legal practitioner in a settlement agreement can be rather costly.
A divorce commences by way of a summons. The divorce action is instituted on the date the summons was issued. Unless there is a settlement between the parties, the matter culminates in a trial and the delivery of a judgment. The trial involves the leading of evidence by both the plaintiff and the defendant.
The summons informs the defendant that if he/she disputes the plaintiff's claim and wishes to defend the action, he/she must serve a notice of appearance to defend the claim on the plaintiff or his/her attorney within 10 days (where the parties live in the same jurisdiction) or 20 days (where the parties live in different provinces) after the date of service of the summons upon him/her. The summons also warns the defendant of the consequences if he/she fails to do so, i.e. it may be possible to obtain judgment by default against him/her.
