The Divorce Process
A divorce action is instituted by the issuing of a summons. To start the divorce process you need to serve a Summons and it must be served personally on the defendant by the sheriff of the court.
There are typically two types of divorces, the contested or opposed divorce and the uncontested or unopposed. The latter type of divorce is the best and most cost-effective for all parties concerned. An uncontested divorce can be finalized in as little as 4 weeks. If a divorce is contested it may take between 2 - 3 years, but most contested divorces do settle long before they go 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. A marriage can be dissolved even if one of the parties does not wish to get divorced.
Uncontested Divorces
The best option, if you can make it happen, is to do your divorce in an uncontested manner. 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.
Contested Divorces
The contested divorce process consists of various stages:
1. Pleadings
Summons:
The divorce action is deemed to have been instituted on the date the summons was issued. Unless there is a settlement between the parties, the summons culminates in a trial and the delivery of a judgment.
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 to defend.
If a divorce summons is not served within 12 months of the date of its issue or, having been served, the plaintiff has not, within 12 months after the date of such service, taken further steps to proceed, the summons will lapse.
Plea:
After serving a notice of defence, the defendant must, within 20 court days, deliver a plea. In the plea, the defendant must either admit/deny/confess/avoid all the material facts alleged in the particulars of claim, and must clearly state the nature and the grounds of his/her defence, including any exception that he/she may have to the summons. The plea contains the basis of the defendant’s defence.
Counterclaim:
The defendant may deliver a counterclaim or claim in reconvention, setting out any counterclaim that he/she may have.
Plea to counterclaim and further pleadings:
If the plaintiff intends to defend the claim in reconvention, he/she must deliver a plea to the counterclaim within 10 court days of delivery of the counterclaim. Once that is done, the pleadings are closed.
2. Application for and set down of trial date and Pre-trial conference
The plaintiff then makes an application for a trial date, which the registrar will set down (allocate). If the plaintiff does not apply for a trial date within the prescribed number of days after the pleadings have been closed, the defendant may do so.
In order for a trial date to be allocated many courts require that the parties convene a pre-trial, the purpose of this meeting is to reduce the time required for the trial by limiting disputes and to attempt to settle certain disputes.
3. Discovery of documents
In the period between close of pleadings and waiting for a trial date, there is a process called discovery, during which each party demands to see the documentation and other material like tape recordings the other party intends to use at trial. Each and every document that a party will use at trial must be ‘discovered’, i.e. the other party must be given an opportunity to read the document before the trial commences.
An attorney may issue subpoenas to relevant financial institutions to deliver documents the other party failed to deliver.
4. Trial
The trial is a complex process in terms of which evidence is lead and witnesses are questioned and cross-examined. The purpose hereof is for the Court to ascertain the truth. A trial can last anything between a few hours to a couple of weeks, it all depends on the disputes the Courts have to decide upon.
5. Judgment
A divorce trial must culminate in the granting of judgment in terms of which an order will be made relating to the division of assets, maintenance payable and or custody to name a few.
6. Costs:
In giving judgment or in making any order including adjournment or amendment, the court may award such costs as may be just. These costs may also be subject to taxation. While costs are generally awarded to the successful party, this is not an immutable rule. A court may decide not to award costs at all or may apportion the costs of the proceedings between the parties.