The Divorce Process In South Africa
Where do I even start?
The divorce process may seem very scary and overwhelming to some, but it does not need to be. In this article I will try to simplify the divorce process so that you can feel more comfortable with what happens behind the scenes.
Firstly, you can either get divorced in the Regional Court of the Magistrate Court, or in the High Court. In South Africa, the marital regime of the parties determines how the parties assets will be divided at the end of the marriage.
A divorce starts with a SUMMONS AND PARTICULARS OF CLAIM which is issued by the Plaintiff (the spouse suing for divorce) at court and it is served personally on the Defendant (the other spouse) by the sheriff of the court.
The summons informs the Defendant that if they dispute the divorce claim and wish to defend it, they need to serve a notice of intention to defend, and secondly the summons states what happens if they do not defend the divorce action. After the summons is served on the Defendant, they may defend it or if they do not and the court is satisfied that the summons was served personally then a divorce by default can occur.
The particulars of claim must state the following:
1. that the marriage which subsists between the parties has broken down and that there is no reasonable prospect of restoring the relationship;
2. the place and date of the marriage;
3. the matrimonial property regime which governs the marriage;
4. the names, ages and sex of any minor children of the marriage;
5. the name and address of the person in whose care the minor children are;
6. and the nature and grounds of each claim being maintenance and/or assets. If there is an asset claim then there must be a clause regarding the division of the estate or enforcement of the Ante Nuptial contract.
If the Defendant defends the divorce then they must deliver a PLEA in which they must either admit/deny/confess/avoid everything in the particulars of claim, and must clearly state the nature and the grounds of their defence. The Defendant may also deliver a COUNTERCLAIM, setting out any claim that they may have against the Plaintiff. If the Plaintiff wishes to defend the counterclaim, they must file a PLEA TO THE COUNTERCLAIM.
Once these are done, pleadings are closed and the Plaintiff applies for A TRIAL DATE. While waiting for a trial date, the parties need to DISCOVER; every document that a party will use at trial in support of their respective case, must be ‘discovered’, and each party must deliver a list of documents that they want to use at the divorce trial.
Parties can also hold a pre-trial conference, which is an informal conference to consider settlement of disputes. Finally, THE TRIAL involves the leading of evidence by both the Plaintiff and the Defendant which will end in a court granting a judgement.
AT ANY TIME BEFORE TRIAL THE PARTIES CAN SETTLE the divorce by entering into a settlement agreement which is signed by both parties, and made an order of the court. If there are substantial assets in the marriage it is advisable to seek professional assistance. All settlement agreements with children involved must be endorsed by the Office of the Family Advocate prior to the divorce being heard in court. If the parties settle, the Plaintiff applies for a set down date and will appear personally in court to conclude the divorce.
A contested and defended divorce can take years to finish and often the parties end up settling right before the trial. It is always must easier and cheaper for everyone involved to try to settle the matter as quickly as possible, especially when there are children involved.