Divorce Part 3: The Process

The prospect of a pending divorce is an extremely emotional one, even in the simplest of cases. The process of litigating a divorce can, however, be a cold and unfriendly prospect…..

There are two main types of divorces, those that are undefended and those that are defended.

Undefended divorces

The process of the divorce, even in the event that it is undefended commences in a similar fashion to that of a defended matter.

A Summons must be issued and served on your spouse. A summons commences the action for divorce and sets out the basis for the divorce as well as what you would like to claim from your spouse.

Once it has been served, your spouse may enter an Appearance to Defend which will simply engage them in the action for divorce.

Should the matter be settled, a settlement agreement will be drafted dealing with the proprietary and ancillary consequences of the marriage.

The agreement must be signed by both parties, and in the event of their being minor children, the settlement agreement must be forwarded to the Family Advocates Office for endorsement.

Should the Family Advocate have any queries relating to the care or contact of a minor child, an interview with the parties and children will be arranged.

Once the Family Advocate has endorsed the agreement, the defense to the action is withdrawn and the unopposed divorce will be set down.

At the hearing of the divorce, only the Plaintiff (the party initiating the divorce) need be present and will be asked a few simple questions whilst in the witness box in order to substantiate the divorce action.

An Advocate will be briefed to take the Plaintiff through their evidence in court.

Defended divorces

The Divorce Action is commenced in the same way as the undefended divorce action discussed above. Your spouse may oppose the divorce action by entering an Appearance to Defend. Thereafter, your spouse, the Defendant must respond to the Summons by way of a Plea.

In the event that your spouse seeks very different relief from you, a Counterclaim will be filed along with the Plea. You will then file a Plea answering the Counterclaim.

Once these pleadings have all been exchanged, the matter is set down for trial.

You must always remember that the litigation process is a fairly lengthy one and delays are often caused by the court system which can be much overburdened. As such, should the matter be defended, it may be many months before you are divorced.

The only two (2) issues which are run to trial are primary care of any minor children and the division of marital assets

As the matter will be run out of the High Court, it will be necessary to brief an Advocate. Thereafter the matter will proceed to trial.

It is never too late to settle a divorce and all attempts should be made to bring the divorce to an amicable end

The emotional, mental and financial cost often far outweighs any benefit that might be achieved through an acrimonious divorce.

About the author

Andrea Goldman is a Partner at Goldman Schultz Attorneys. For more information contact info@gslaw.co.za or www.gslaw.co.za