Divorces may be Opposed or Unopposed. Divorces are unopposed when the parties have agreed to every aspect of their divorce including, the custody of the child/ren, contact schedules of the child/ren, maintenance of the child/ren and maintenance of the other spouse if this is applicable, division of assets and a division of the debts. Divorces are opposed when the parties are unable to reach an agreement in terms of issues such as :
- who minor child/ren will primarily reside with;
- contact with the minor child/ren;
- how the parties’ estates are to be divided; or
- how much maintenance should be paid in respect of a child/ren or a spouse.
An unopposed divorce is one where the spouses are able to reach agreement, either between themselves or with the assistance of Attorneys as to the aspects of their divorce. In these instances, the agreement reached between the parties is documented in a settlement agreement and a parenting plan where a minor child/ren are involved.
Divorces must always be instituted by way of Summons to the other party and a Particulars of Claim therewith. The spouse instituting the divorce action is called the ‘Plaintiff’ while the spouse on whom the Summons is served is called the ‘Defendant’. Even when a divorce action is unopposed it is still required to comply with certain formalities of the Summons as well as the format of the Settlement Agreement. In the event of a minor child/ren, the settlement agreement and parenting plan must be endorsed by the Family Advocate. Once the Summons has been served on the Defendant with the attached settlement agreement, and where applicable parenting plan and endorsement of the Family Advocate the divorce can be set down on the unopposed court roll for hearing. The settlement agreement and parenting plan where applicable will then be incorporated in, and made an Order of Court with the Decree of Divorce.
Unfortunately, a settlement cannot be forced on the other party. If spouses cannot agree to terms or refuse to even entertain settlement negotiations, there is unfortunately no option except to issue an opposed divorce Summons.
The most favourable option is to settle your divorce on an unopposed basis. An unopposed divorce is without a doubt the least expensive, and less stressful type of divorce.
Specialist divorce attorneys are exceptionally important to consult with if you intend on divorcing. It is essential that the divorce process is fully explained, and that you are made aware of your responsibilities and rights when there is a minor child/ren born of the marriage. Divorce attorneys will also provide estimations as to time a divorce will take to finalise depending on whether it will be opposed or unopposed and the costs involved.
Benita Ardenbaum Attorney specialises in divorce. Contact our offices today for sound, professional advice.
For direct answers to your specific personal questions, please contact us directly.
Author – Kate Bailey – Hill