The divorce process in South Africa is fairly straightforward. The two courts that deal with divorce matters in South Africa is the High Court and Regional Court of the Magistrate Court however most divorces are usually lodged in the High Court. Although the process is seemingly straightforward the emotional and monetary consequences suffered by the families involved should never be underestimated.
The length of the entire process is dependent on whether the parties are willing to resolve the matter amicably or whether settlement between parties is not achievable.
A divorce proceeding is instituted by the issuing of a summons either in the Regional Court of the Magistrate Court or in the High Court. A court has jurisdiction in a divorce proceeding 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 date on which the action is instituted.
There are two types of divorces:
-The uncontested divorce; and
-The contested divorce
The differences are highlighted further in this article.
How does the process begin?
Ideally in order to hasten the process parties should consider settling the matter by way of settlement agreement. It is advisable for both parties to discuss the terms of settlement during a formal meeting having their legal representatives present or they may both consult with the same attorney, who will be neutral and impartial. The settlement agreement must deal with the matter of the division of the estate and assets and arrangements with regards to any children born or adopted during the marriage.
The settlement agreement can then be drafted and the formal process can begin. This will be what is known as an uncontested divorce which is by far the most cost effective and quicker solution.
If a divorce is contested, whereby the parties cannot reach settlement the matter will need to go to trial for the court to adjudicate on the matter. This may take years depending on the availability of court dates.
The summons is then drafted and issued at court. The issued summons must be served personally on the defendant by the sheriff of the court. The summons will state the number of days in which the defendant has to file a notice of intention to defend which is usually 10 days depending on where the parties live. The notice of intention to defend will not be filed when the divorce is uncontested and parties have signed a settlement agreement. If however the parties did not reach settlement and the defendant wishes to oppose the matter he/she must file the notice of intention to defend within the stated time frame.
Where the matter is uncontested or where no settlement has been reached and the defendant fails to file a notice of intention to defend within the allotted time the plaintiff can approach the court to enrol the divorce on the court roll. The latter is referred to as a default divorce. Only the plaintiff will be required to appear in court after which the divorce order will be granted.
Should the defendant file a notice of intention to defend within the allotted time then the matter will be set down for trial to be heard. Both parties must be present with their legal representative to submit their evidence and present their argument. The contested divorce process consists of various stages and is a lengthy process.
The most suitable and cost-effective option is the uncontested divorce. The parties work together to agree on the terms of the divorce. The parties will agree prior to the divorce on how to divide their assets and, if there are children involved, on issues such as care and primary residence.
Should you require further information or assistance regarding divorce proceedings, feel free to contact us!
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