No one ever said that divorce would be easy. No one. No one ever said you have to make it more difficult than it already is to gain your freedom, whether you want it or it is forced upon you when your partner wants to bail out. No one.
How Can You Make It Easier?
To make it easier on yourself, you have to know what the process entails and the essential steps are that it will follow. This is a brief description to steer en route and not meant to be seen as the full and detailed legal processes that will and can be taken during a divorce matter. The time and money spent on divorce are entirely up to the parties’ ability to be reasonable and fair.
In South Africa, a divorce is started by an action procedure in the Court. This can be in either the High Court of the division you are residing in or a regional court within your jurisdiction.
How to Choose the Right Court?
If you are of no financial means and you cannot afford to have an expensive divorce, you should approach a lawyer and request that your action proceeds within the Regional Court. By doing so, you will ensure that your attorney can represent you and it would not be necessary to brief an advocate for the purpose of court representation.
As with all things in life, it can have a downside. Time. Full court rolls. Frustration. However, it does come in much cheaper than litigation via the High Court route.
The Regional Court deals with all divorce disputes including maintenance (spousal and dependents) as well as the division of assets as does the High Court. The High Court is the best option when difficult disputes between partners are unresolved. It is expensive and your attorney will normally also brief an advocate who’s fee you would have to guarantee before the advocate will meet with you and your attorney.
Steps that Must be Taken
After a decision has been made as to from which court the action will arise, the Summons will be issued. Herein under are steps that must be taken during a divorce proceeding. Please note that there might be more steps taken or less, it depends on each case individually.
The Issue of the Summons
The summons is the document in which the Plaintiff in the matter (the person who institutes the action) describes to the Court the reasons for the irretrievable breakdown in the marriage necessitating the divorce and what the party seeks from the other and what the party is also willing to give to the other.
What the Plaintiff asks and avers in the summons is the Plaintiff’s subjective opinion and requests and does not necessarily constitute the full and or the true facts.
The Summons Being Served by the Sheriff
The sheriff for either the High Court or the Regional Court will serve the summons to the defendant, explaining to the defendant that the summons seeks a divorce between the parties. The sheriff will also explain to the defendant that he/she has a number of days in which he/she should either defend the matter and enter an appearance to defend. Alternatively, if the defendant is content with what the plaintiff requests, the matter will proceed undisputed and the Court will order a decree of divorce after the days in which the defendant had to defend the claim have lapsed and the matter was placed on the roll for hearing.
Seek Legal Advice and Enter Appearance to Defend
The defendant, if he/she does not agree with the summons and the order the plaintiff seeks, should immediately seek legal assistance.
Plea for Defendant and Possible Counterclaim
After an appearance to defend the matter has been entered, the defendant still has some time to enter a plea and/or a counterclaim to bring his/her version of the facts before the Court.
Plea for the Plaintiff to the Defendant’s Counter Claim
If the defendant has entered a plea and filed a counterclaim, the plaintiff will have an opportunity to plea to the counterclaim too.
During this period in steps four and five, or as early as possible, it will be advisable that the parties and their legal representatives meet to try and reach a suitable amicable settlement. It is important to note that prior to entering a plea, the parties can ask for further particulars by serving and filing a request to such. This is all done by the lawyer for each party.
What is a Settlement?
A settlement between the parties is a legal contract between the plaintiff and defendant stipulating the agreement they have reached pertaining to the division of assets, maintenance orders, and other disputes. This agreement will be made an order of Court and is enforceable between the parties themselves. It does not necessarily constitute enforceability toward third parties. If for instance a settlement stipulates the husband will pay the medical bills for the minor children, and medical bills are outstanding and the mother has taken the children to the doctor, the doctor can sue the mother for outstanding medical fees and the mother will have a claim against the father for all monies she had to pay. The same principle applies with regards to school fees.
Within this settlement, a parenting plan will be incorporated regulating the parent’s rights and obligations with regards to minor children. When minor children are born within the marriage, the Family Advocate also needs to approve the settlement reached before the Court will accept it too.
What About Interim Maintenance?
During the divorce proceedings, a party in need of financial assistance can approach the Court for assistance. This a called a Motion Procedure. In the High Court it is known as a Rule 43 Application and in the Regional Court a Rule 58 Application. The respective lawyers will advise the party in need with regards to this process. However, this is not a process to be abused in order to gain a better settlement. It often happens that a party wants to abuse his/her circumstances by way of this application and the Court will frown upon such an applicant.
What Happens After the Parties Have Pleaded?
After the parties have entered their pleas, the documents will be closed and the plaintiff’s attorney will approach the Court for a trial date. A court date is not likely to be received within one year of the summons being issued and therefore, it is in the best interest of the parties to settle the matter amicably to avoid unnecessary legal costs, frustration, and hatred to spill over.
What About Mediation?
Mediation, in order to reach a settlement, is proven to be valuable, only if the parties are reasonable and fair and open to advise of a third party, the Mediator. Mediation is possible at all times prior to reaching a settlement or prior to the matter enrolled for trial. It is not a free process and the parties will have to pay the fees of the Mediator, who is a private individual, mostly a lawyer in private practice also practicing as such.
If the parties have settled or after the hearing, the Court will make an order, called the Decree of Divorce. By this time, the marriage will be dissolved and the parties will no longer be married to one another.
Decree of Divorce
Be sure to get a copy of your Decree of Divorce and hand it in at Home Affairs. In recent years, Home Affairs are no longer obtaining the Decree of Divorce from the Courts and more often than not, a couple of years after your divorce, you might discover, especially when you want to remarry, that you cannot register your new marriage as, according to Home Affairs, you will still be married to your former partner.
Now that you have freedom, bury the hatchet and look at the horizon. A new life awaits and freedom is calling!