- Featured article by LAWYERS-ONLINE.CO.ZA - April 2019
What is the Process
Divorce can be defined as the legal dissolution of a marriage by a court or other competent body.
Typically there are two types of d ivorces: - namely contested and uncontested.
An uncontested divorce is one in which you and your spouse work together to agree on the terms of your divorce. You will both consult with the same attorney, who will be unbiased and impartial.
There is no formal trial, and only the plaintiff appears in court. 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.
Usually where children are 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 or to involve a qualified third - party mediator, 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.
Regional and family courts do provide free assistance through the clerk of the court to enable members of the public to conclude their divorces without legal representation, but this is a time - consuming process, which amounts to long delays, and so may not always be advisable.
An uncontested divorce can be finalised in four to six weeks depending on the court roll. It is not necessary for both parties to appear together in court, therefore, only the plaintiff will give evidence and conclude the divorce before a magistrate or judge, depending on the court in which the divorce was instituted.
The process of an uncontested divorce is relatively simple. As already mentioned, the parties usually enter into a settlement agreement and parenting plan (when children are involved) prior to the divorce.
Once the settlement agreement and parenting plan are signed by both parties and witnesses, the divorce process can commence. Usually, the settlement agreement and parenting plan will be attached to a summons and a particulars - of - claim document. The plaintiff then issues the summons and annexures at court.
The court registrar will open a file, stamp the documents and allocate a case number. The documents will then be handed back to the plaintiff and the plaintiff will deliver two sets of these documents to the sheriff in the area where the defendant resides or work.
The sheriff will then serve the documents personally on the defendant and issue a return of service proving that the documents were served.
After a period of 10 days, if the plaintiff and defendant live in the same jurisdiction of the court, or 20 days, if they live in different jurisdict ions, the plaintiff may enrol the divorce on the court roll.
When there are children involved, the parenting plan must be endorsed by the Office of the Family Advocate prior to the divorce being heard in court. The court will not conclude a divorce without this endorsement. The registrar will then allocate a date and the divorce will be set down on the court roll.
The plaintiff must then file a notice of set down for the date and time set by the registrar. The plaintiff will appear personally in court before a judge or magistrate to conclude the divorce on the date set down.
The contested divorce process consists of various stages: pleadings; application for and set down of trial date; discovery of documents; further discovery and particulars; and pre - trial conference.
A court has jurisdiction in a divorce action if one or both parties are: domiciled in the area of jurisdiction of the court on the date on which the action is instituted; or ordinarily resident in the area of jurisdiction of the court on the said date and has/have been ordinarily resident in South Africa for a period of not less than one year immediately prior to that date.
A divorce action is instituted by the issuing of a summons. You can divorce in either the Regional Court of the Magis trate Court having jurisdiction in your area or in the High Court.
Date: 15th April 2014
Legislation: Divorce Act, 1979 (Act No. 70 of 1979)