Divorce breakdown - what does the process involve?
A divorce action is instituted by the issuing of a summons. You can institute divorce proceedings in either the Regional Court of the Magistrate Court having jurisdiction in your area or in the High Court.
The first step in the divorce process is that you need to serve a Summons. A divorce summons must be served personally on the defendant by the sheriff of the court.
In a divorce action a court has jurisdiction 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 said date and has/have been ordinarily resident in South Africa for a period of not less than one year immediately prior to that date.
There are two types of divorces, the contested or opposed divorce and the uncontested or unopposed. An uncontested divorce is where the parties are able to achieve an agreement which would be documented in a Deed of Settlement. This is the most cost-effective option for all parties concerned. An unopposed divorce can be finalized in as little as 8 weeks. If a divorce is opposed it may take between 1 - 2 years, but the majority of opposed divorces settle before they go on trial.
UNCONTESTED OR UNOPPOSED DIVORCE
The most cost effective and fastest option is to settle your divorce by agreement. An uncontested divorce is one in which you and your spouse agree on the terms of your divorce. You can both consult with the same attorney if you choose to do so. Only the plaintiff appears in court. A settlement agreement is then drafted with the help of the attorney dealing with the agreement regards the children (a parenting plan is drafted, and the family advocate signs it off), maintenance and contact and division of assets, which agreement must be signed by both parties, and this agreement is made an order of the court.
Please contact us to give you an estimate for the costs of an unopposed divorce.
THE OPPOSED / CONTESTED DIVORCE
The opposed/contested divorce process consists of various stages:
application for and set down of trial date;
discovery of documents;
further discovery and particulars;
What are Pleadings?
The formal documents in a divorce are referred to as pleadings. Typically, the pleadings in a divorce will consist of the following documents:
summons, particulars of claim and notice of defence;
plea to counterclaim and further pleadings.
A divorce is commenced by the issue of a summons:
The summons tells the defendant that if he/she disputes the plaintiff's claim and wishes to defend the action, he/she must serve a notice of appearance to defend the claim on the plaintiff or his/her attorney within 10 days (where the parties live in the same jurisdiction) or 21 days (where the parties live in different provinces) after the date of service of the summons upon him/her. The summons also warns the defendant of the consequences if he/she fails to do so, i.e. it may be possible to obtain judgment by default against him/her.
After serving a notice of intention to defend, the defendant must, within 20 court days, deliver a plea. The plea must be dated and signed by the defendant or his/her legal representative. 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 defendant should deliver his/her plea timeously. The plea contains the basis of the defendant’s defence.
When a defendant fails to deliver a plea, the plaintiff may deliver a notice in writing calling upon the defendant to deliver a plea within 5 court days of the service of the notice (referred to as a ‘notice of bar’) and warning the defendant that his/her failure to do so will result in the case being set down without further notice. Furthermore, judgment may be given against the defendant in his/her absence, called default judgment.
The defendant may deliver a counterclaim or claim in reconvention, setting out any counterclaim that he/she may have.
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 and either party can apply for a trial date.
The discovery process happens before the trial date and this is where each party is entitled to ask for disclosure by the other side of 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 consider and inspect the document before the trial commences.
The documentation may include bank statements, financial information, shareholdings in companies, credit card statements, bond accounts and tax returns. It is usually during the discovery process that most of the disputed documents are found.
The discovery process is invaluable in divorce proceedings, as it leads to the discovery of hidden assets, if any, and can also satisfy both parties of what is in fact the true extent of the estate of the parties, if married in community of property, alternatively the value of the estate of each party (if married out of community of property with accrual).
Should the other side be uncooperative, an attorney may issue subpoenas to relevant financial institutions to furnish documents the other party failed to deliver.
Further discovery and particulars:
Further discovery is possible if a party believes that, in addition to the documents, books or tape recordings disclosed, other relevant documents or recordings may be in the other party’s possession.
If the whereabouts of such items are known, the party requesting them must state this in his/her notice for further discovery to the court. The Rules of Court provide for a mechanism to secure further and better discovery from a litigant who is hiding documents or not being truthful about document in his / her possession.
Further and better discovery is a powerful tool in divorce proceedings to secure additional information regarding a spouse’s financial status. A major advantage is the fact that the party who receives the notice must reply under oath. In terms of the court rules, a party may deliver a notice requesting such further particulars as are strictly necessary to enable him/her to prepare for trial, not less than 20 days before the trial. If a party does not adhere to such a request or fails to do so timeously and sufficiently, the other party may request for the case to be dismissed.
The court may at any stage after close of pleadings, or at the request in writing of either party, direct that an informal conference be conducted in the presence of the judicial officer in chambers, in order to consider a settlement of disputes.
A pre-trial conference must be held and documented and the court may ask for a judicial pre-trial before a Judge where one limits the disputes between the parties, and the parties agree on how many days it will take to run the trial etc.
The plaintiff then makes an application for a trial date, which the registrar will allocate on a date determined by the Court onto the trial roll.
Trial proceedings commence with both parties, or their legal representatives being given an opportunity to deliver an opening address, in which the court is informed of the issues that are in agreement and those that are in dispute between the parties.
If, on the pleadings, the burden of proof is on the plaintiff, he/she must give evidence first. Where the burden of proof is on the defendant, the defendant will be first.
Any witness may be examined by the court as well as by the parties, and the court may decide to call a witness not called by either party if it thinks his/her evidence necessary in order to discover the truth or answer the question before it.
After both parties have given evidence, whoever went first may again address the court. The other party then has a chance and the party who went first may reply.
A divorce trial must result in the court making a judgment. The court may grant any of the following orders:
judgment for a party in respect of his/her claim in so far as he/she has proved the same;
judgment for a party in respect of his/her defence in so far as he/she has proved the same; or
absolution from the instance if it appears to the court that the evidence does not justify giving judgment for either party.
The total cost for an opposed trial will depend on the length of the trial, the interim applications that may need to be launched; please contact us to give you an estimated cost of same.
RULE 43 / 58 (INTERIM RELIEF)
When a divorce is taking a long time to finalise or when one of the spouses is a homemaker with no income, the law provides a mechanism that can be used to assist spouses during a divorce to provide for the interim period until the divorce is finalised. Rule 43 of the High Court and rule 58 of the magistrate’s court provide an interim measure to help an applicant quickly and with minimal legal costs. In the law, this is called interim relief. Rule 43/58 can be used for one or more of the following:
interim care or contact with the child;
maintenance for the wife and/or children;
enforcing certain payments, such as for the bond on the matrimonial home, vehicles, school fees, medical aid premiums and even deposits on new accommodation and relocation costs;
interim contribution towards the costs of the divorce and legal fees; and/or
an order for delivery of a car, furniture, etc.
Rule 43/58 deals with many of the issues that will ultimately be dealt with in the final divorce action but is an interim solution. An extremely acrimonious divorce can take years to finalise and spouses need to be safeguarded during the divorce process.
In terms of the equality provisions in the Constitution, a divorcing wife who has no income is entitled to a contribution to her legal costs to ensure she has an equal opportunity to defend her case.
Depending on the circumstances, such an application can be brought:
before issue of the summons;
simultaneously with the issuing of the summons; or
after a notice of intention to defend is received.
Who can claim?
An applicant is entitled to interim relief depending on the living standards of the parties. In applications of this nature, an applicant must show that he/she has insufficient means and that the respondent can afford to meet the amounts being sought.
Where an applicant claims a contribution towards his/her legal costs, the following principles will apply:
The test to be applied in considering the amount is that the applicant should be placed in a position to adequately present his/her case.
The fact that the respondent is wealthy does not entitle the applicant to unlimited spending, there being a difference between what he/she wants and what he/she needs.
What is ‘adequate’ depends on the nature of the litigation, the scale on which the respondent is litigating and the scale upon which he/she intends to litigate, with due regard being given to the respondent’s financial position.
The applicant is not entitled to all his/her costs but merely a ‘contribution towards’ them. An applicant may lodge further applications later on in the process for his/her legal costs, including costs for each day of the trial.
The contribution is not limited to disbursements only and may include reasonable attorneys’ reasonable.
Procedure to obtain interim relief:
The spouse seeking an interim relief order (the applicant) will file a notice and affidavit (referred to as a founding affidavit) with the court setting out the facts relating to the divorce and why the spouse is of the opinion that he/she is entitled to relief from the spouse against whom relief is sought (the respondent).
The applicant will need certain prescribed documentation to lodge an application for interim relief, including:
a notice in terms of rule 43/58, requesting the respondent to file an opposing affidavit within 10 days;
an affidavit accompanying the rule 43/58 notice; and
annexures proving income, expenses, assets, etc.
The spirit of rule 43/58 demands that the applicant provide a very brief, succinct statement of the reasons why he/she is asking for the relief claimed and that the respondent supply an equally succinct reply. The court must then to do its best to arrive expeditiously at a decision. Because our courts see this rule as an expedient process, a party may object when the supporting documentation used in the application are too voluminous. At the hearing of the rule 43/58 application, no oral evidence is given and the application is argued based on the documentation before the court. The judge or magistrate will make an order as he/she deems appropriate under the circumstances.
It is up to the respondent to provide the court with evidence that disputes the applicant’s claim, as the case may be. If the respondent does not do so, the court is entitled to infer from the evidence at hand that he/she can afford to pay the interim relief.
If the application is unopposed within the 10 days given to the respondent to reply, it may be placed on the court roll. An attorney may appear on behalf of the applicant to brief the court and argue the application. Once the court grants the order, it must be served on the respondent as soon as it is received from the court. If rule 43/58 is argued on an opposed basis, the respondent must file an opposing affidavit and may also bring a counter application, for example requesting an interim order for care of and contact with the children.