Divorce papers are the documents which are issued and served on your spouse in order to initiate the divorce proceedings. These papers are also referred to as the summons and particulars of claim.
Whether you are considering engaging in divorce mediation in the hope of reaching a settlement so that your divorce is uncontested, or whether you anticipate a contested divorce, the summons and particulars of claim will always need to be issued by the court and served on your spouse by the sheriff of the court so that the process of the divorce can begin.
The summons and particulars of claim details the following:
1. The details of both you and your spouse, including when, where and how you were married.
2. The reasons for the breakdown of the marriage.
3. Maintenance may be required (both spousal maintenance and child maintenance).
4. The residence and contact to be exercised in respect of any minor child(ren).
5. The proprietary consequences of the divorce.
Once the summons and particulars of claim have been served on your spouse; they will have an opportunity to oppose the divorce should they not agree to the terms stipulated in the particulars of claim.
In the event of your spouse wanting to oppose the divorce action, for whatever reason, the process of filing further pleadings with their replies and own claims then begins, and with you also replying to their claims, with the end point being the trial.
When parties intend on getting divorced from one another, it is not only the issue of maintenance and contact with children that need to be dealt with. Parties also need to deal with the financial implications of dissolving the marriage.
Dealing with the proprietary consequences of a divorce refers to dealing with, amongst other things, immovable property, general assets including household items, motor vehicles, pensions and retirement annuities, business interests and debts.
The matrimonial property regime which is applicable to your marriage will determine how the proprietary issues of the divorce must be dealt with in the event of there being no agreement between you and your spouse on this.
Parties to a divorce action have contractual freedom to either apply the matrimonial property regime, alternatively to apply the terms of a settlement agreement that they might find better suited to their circumstances or more pragmatic, in order to finalise the financial issues involved. Any agreement which may be entered into will then, insofar as may be permitted by the Court dealing with the divorce, be incorporated into the final Divorce Order.
Where parties cannot agree on how these issues are to be dealt with, the Court will adjudicate on these matters at trial.