REALITY OF DIVORCE: UNDERSTANDING THE LEGAL PROCESS

by on 05-11-2018 in News from advertisers

- "Love, the quest; marriage, the conquest; divorce, the inquest" (quote by Helen Rowland) -  
 
In South Africa, the statistics of divorce is increasing.  This is a reality.  Divorce has emotional and financial implications which are excessive. Divorce is not a simple break, but during the divorce one should remember “… divorce is like being hit by a truck…but if you live through it, you start looking very carefully to the right and to the left” (quote by Jean Kerr). 
 
When we get married we believe it will be “till death do us part” but realistically life changes and things happen.  We would love to live in the fantasy world where love concurs all. “I used to think that divorce meant failure, but now I see it more as a step along the path of self-realization and growth” (quote by Alana Stewart). If the marriage relationship has broken down and that there is no possibility of restoring it, the inevitable result will be divorce. 
 
Registered marriages can only be terminated by divorce order granted by a Court. 
 
As stressful and time-consuming as preparing for your wedding day, the same can be said for divorce.  Divorce proceedings have a process that is to be duly followed.  In this article I shall provide a basic guide to the process and highlight certain aspects related to divorce proceedings. 
 
1. PROOF REQUIRED IN ORDER TO BE GRANTED A DECREE OF DIVORCE 
 
There are two grounds upon which a Decree of Divorce may be granted. These are: 
 
1.1. The irretrievable breakdown of the marriage.  In terms of Section 4 of the Divorce Act, irretrievable break-down of marriage as ground of divorce is applicable if: 
 
1.1.1. the court is satisfied that the marriage relationship between the parties to the marriage has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between them. 
 
1.2. The mental illness or the continuous unconsciousness of a party to the marriage.  In terms of Section 5 of the Divorce Act, mental illness or continuous unconsciousness as grounds of divorce is applicable if the court is satisfied that the opposing party in terms of the Mental Health Act, 1973 (Act No. 18 of 1973):  
 
1.2.1. has been admitted as a patient to an institution in terms of a reception order is being detained as a State patient at an institution or other place specified by the Minister of Corrections... 
 
2. ISSUES THAT WILL BE DEALT WITH IN DIVORCE 
 
The issues generally dealt with are: 
 
• Assets and Liabilities. • Maintenance for the Parties. • Parental Rights and Responsibilities. In terms of section 18 of the Children's Act, 2005, parental Responsibilities and Rights include: Contact, Care, Maintenance and Guardianship. 
 
3. DIVISION OF ASSETS 
 
Divorce order will reflect the marital regime of the parties which governs in what way the possessions will be divided upon termination of the marriage at the time of the divorce.   
 
4. WHICH COURT TO APPROACH TO APPLY FOR DIVORCE? 
 
There are two types of courts you could approach, namely you can institute divorce proceedings in either a High Court or Regional Court. 
 
To establish which Court to use, you will need to determine which court has jurisdiction. Jurisdiction will be determined by you or your spouse.  So, one will have to look at: 
 
4.1. The place you consider your permanent home located inside the area of jurisdiction of the Court on the date on which the action is instituted or 
 
4.2. The place where you regard as being an ordinarily resident in the area of jurisdiction of the court on the date the action is instituted and has / have been ordinarily resident in South Africa for a period of not less than one year immediately prior to that date. 
 
The High Court has jurisdiction over all the courts, so if you are unable or unsure which court, then the High Court will apply.  The difference between the High Court and the Regional Court is based action being more costly and long waiting periods due to high volume burdened court rolls. 
 
5. DIVORCE PROCEEDINGS: 
 
Once you have established which court you will proceed with divorce, then you can start the divorce process. To commence with the divorce process, a Summons needs to be served personally on the other party by the sheriff of the court.  
 
There are two types of divorces, namely unopposed divorces or opposed divorces. 
 
5.1. UNOPPOSED 
 
This is the most cost-effective divorce where both parties are in agreement to the terms of the divorce. The parties usually arrive at settlement agreement and a parenting plan which relates to aspects governing children’s care, access, custody, maintenance etc.  
 
As soon as the settlement agreement and parenting plan are signed by both parties and witnesses, the divorce process can start. This type of divorce is also time-effective in that it is much quicker to obtain a divorce as it can be finalised in about four to six weeks. Where summons is issued, and the other party does not defend the matter, then on the return date the court can grant divorce based on the terms of the divorce reflected in the summons. 
 
5.1.1. Process of Unopposed Divorces: 
 
o STEP 1: SETTLEMENT AGREEMENT AND PARENTAL PLAN  
 
Prior to divorce, parties enter into a settlement agreement plan which are terms of the divorce that parties agree to.  
 
Where children are involved a parental plan will be drafted and signed by both parties.  Thereafter the parental plan will be sent to the family advocate who will view the parental plan and ensure that the best interests of the children are maintained. The parenting plan must be endorsed by the Office of the Family Advocate prior to the divorce being heard in court as the matter will not be heard without this endorsement. 
 
The settlement agreement and parental plan should be signed by both parties and witnesses and then it needs to be attached to a summons and a particulars-of-claim as supporting documents.  
 
o STEP 2: SUMMONS 
 
A summons notifies the other party that if he/she disputes a claim and wishes to defend the action, he/she must serve a 
notice of appearance to defend the claim within a prescribed period of time after the date of service of summons.  The summons further warns the other party that failing to defend could result in judgement being made final based on the contents of the document. 
 
Summons has to contain particulars of claim, which states the nature and grounds for divorce to be made final.  
 
o STEP 3: ISSUE OF SUMMONS AND SUPPORTING DOCUMENTS 
 
The clerk of the court/register will open a file, stamp the Summons and supporting documents and allocate a case number. 
 
Summons and the signed agreements will then be issued at court. The divorce action is then regarded to be instituted on the date the summons was issued.  
 
Once a case number is provided and issued at court, the summons and supporting documents will be returned for service.  A copy of the issued Summons and supporting documents has to be handed to the sheriff of the court to be served on the other party. 
 
o STEP 4: SERVICE OF SUMMONS AND SUPPORTING DOCUMENTS The Summons and Supporting documents has to be served personally on the other party by the sheriff. The sheriff will then issue a return of service proving that the summons and documents were served. 
 
The return of service must state that the service has been duly effected and provide date thereof or that the service could not be effected and state reasons why. 
 
o STEP 5: PLACING MATTER ON THE ROLL FOR HEARING 

 After a period of 10 days, (if the parties live in same area of the court), or 20 days, (if they live in different jurisdictions), the matter may be placed on the court roll for hearing. A date will be allocated by the clerk or registrat of the court and the matter will be set down.  
 
o STEP 6: DATE OF HEARING 
 
On the date of the hearing, the party who instituted divorce proceedings must be at court.  It is not necessary for the other party to be present. 
 
The Judge or Magistrate will call the party who instituted the proceedings to the stand and request confirmation of the application for Divorce and signatures on the agreements. 
 
Should the Judge or Magistrate be satisfied, he shall then grant the divorce. 
 
5.2. OPPOSED  
 
This type of divorce is where parties cannot come to a mutually agreed settlement and are disputing aspects of the divorce terms. “Although marriages traditionally begin with I do, when they fail, they invariably end with You don't” (quote by Judith Viorst). 
 
Opposed divorces are emotionally draining and time consuming. If a divorce is opposed, it may take between two to three years. Usually where children are involved or where there are substantial assets, retirement annuities or pension funds, disputes regarding its distribution causes the long-drawn process of divorce.  This will inevitably lead to a trial where both parties present their case together with evidence and the Magistrate/Judge thereafter will make a final ruling. 
 
The same steps as in unopposed divorces regarding summons; issue and serve thereof will be the same.  After receipt of notice of intention to defend, then the matter will be considered an opposed divorce. 
I shall as above I shall elaborate on the various steps below leading to trial. 
 
5.2.1. Process Of Opposed Divorces: 
 
o STEP 1: SAME AS STEP 2 ABOVE IN UNOPPOSED DIVORCES 
 
o STEP 2: SAME AS STEP 3 ABOVE IN UNOPPOSED DIVORCES 
 
o STEP 3: SAME AS STEP 4 ABOVE IN UNOPPOSED DIVORCES 
 
o STEP 4: PLEA 
 
Plea is provided by the other party who defends the matter (“the defendant”).  This plea must be submitted to the person / representative that instituted the divorce proceedings (“the plaintiff”). The Defendant must use the plea to answer each and every allegation of the Plaintiff and to set out his or her defence clearly. Defendants response to the particulars of claim must either admit/confess/deny or avoid the material facts alleged in the particulars of claim.  The defendant must further state the nature and grounds of his/her defence.    
 
If the defendant does not deliver his plea after the lapse of 20 days, the plaintiff must deliver a notice requesting the plea within 5 days and failure to do so will result in the matter be set-down for hearing without further notice.  Once this matter is set down due to non-delivery of plea, judgment can be made against the defendant. 
 
o STEP 5: COUNTERCLAIM 
 
The defendant may provide a counterclaim which is similar to the particulars of claim.  The counterclaim is what the defendant will set out and ask the court what he or she wants 
the court to order.  The counterclaim has to be served the same time as the defendant’s plea. 
 
o STEP 6: PLEA TO COUNTERCLAIM 
 
As with the plea by the Defendant, the plaintiff has to respond thereto within the prescribed period of time.  The plea to counterclaim will have to admit/deny/confess or avoid and respond to the material allegations in the counterclaim. 
 
o STEP 6: DISCOVERY OF DOCUMENTS 
 
Prior to trial, each party sends a notice demanding disclosure of documentation and other material which parties intends to use as evidence in trial.  The reason for discovery of documents and supporting material is that it provides the other party an opportunity to validate; investigate and read the evidence before the trial.   
 
Only documents discovered may be used as evidence.  Any other documents or supporting material not disclosed in the discovery affidavit may not be used unless the Judge or Magistrate consents thereto. 
 
o STEP 7: PRE-TRIAL 
 
Where there is a possibility of settlement of disputes, the Magistrate or Judge may request either party to an informal meeting where they will discuss aspects of the matter that are disputed or not; whether settlement can be made and whether the matter is ready for trial.  This assists in cutting down the duration of the trial by eliminating unnecessary allegations where parties have agreed on; confirming that all documents have been provided etc... 
 
o STEP 8: TRIAL 
 
When the day finally arrives, both parties address the court 
with an opening statement and highlights the dispute between the parties.  
 
Evidence will be presented by both parties.  An opportunity will be provided for a final response to other party statement and evidence. 
 
o STEP 9: JUDGMENT 
 
After both parties present their arguments and evidence, the Judge or Magistrate will consider and make a ruling. 
 
6. FINANCIAL ASSISTANCE: 
 
In most cases there are the spouses that rely on financial support of the other spouse and as soon as divorce proceedings commence, they stop with their financial obligations and support.  As divorce is a lengthy process, one can approach the court for interim relief.  This application allows the spouse to apply to court for an order where the other spouse provides financial support, which financial assistance will be used to support the children and maintain the household.  The court will grant interim relief which is a temporary order until the final divorce order has been granted.  
 
7. CONCLUSION 
 
So, after all the paperwork and getting through of court dates, one thinks that it will be incredibly redeeming.  What you opt to recognize is the ramifications that divorce entails.  It may seem pleasant or enjoyable to be away from your spouse. We fail to recognize the ramifications of divorce until we experience it, especially if the divorce tracks on the ugly side. One thinks the hard part is getting through the divorce, but the real challenge is the building of the life thereafter, especially where children are involved. “Divorce is brutal and horrible and... you have to actively work to get your life back on track” (quote by Jane Kaczmarek).   
 
Life is not simple. Divorce sometimes brings the worst out of people. A divorce should be a dealt with care as children have to deal with the changes 
and adjustments too.  “Divorce in and of itself, and with children, is devastating” (quote by Robin Wright). 
 
We will face challenges, but we will have to understand and accept our decision.  Divorce should not be taken likely, but in instances where it is for the best, the healing will only begin. As much as we all wish to live in a world of happy endings of “till death do us part”, some endings have a modern-day twist where remaining in a marriage with no happiness, is a metaphorical death on its own part. “Divorce isn't such a tragedy. A tragedy's staying in an unhappy marriage, teaching your children the wrong things about love. Nobody ever died of divorce” (quote by Jennifer Weiner) 
 
(NOTE: this article is for information purposes only. Each case depends on merits of matter and should be consulted with an attorney) 

Log in to post a comment

Featured Listings