frequently asked questions
divorce law
In South Africa both the High Court and the Regional Magistrate’s Court deal with divorce litigation. Both courts have similar procedures which need to be followed prior to a matter going to trial. Divorce proceedings are commenced when one of the parties serves a summons and particulars of claim on the other party, which can include a decree of divorce, spousal maintenance, child maintenance, care of and contact of minor children, division of assets; and more depending on your matter.
Whilst we do our utmost throughout proceedings to make attempts to settle divorces through negotiation and mediation, where this is not possible, we will deal with the court processes and procedures on your behalf in an efficient and effective way.
Divorce
Divorce lawyers that have specialised in divorce law, as opposed to lawyers who perform the odd divorce from time to time, are an invaluable resource, as they can provide you with far more accurate advice on how to deal with your divorce based on their expertise and their experience of previous divorces and similar situations.
Divorce lawyers have vast knowledge of the decisions which Judges are more likely to make on any particular issue in the divorce, and how certain actions tend to be viewed by the Courts.
Divorce lawyers know what Judges are looking for and what types of documentation or evidence will be important to a favourable outcome for you.
Divorce lawyers are particularly equipped to provide expert advice on divorces and how to deal with the specific issues that arise in divorces. They are also aware of what the procedural requirements or restrictions are for the divorce process to get it to trial and be ready to argue.
Divorce lawyers are responsible primarily for drafting the divorce papers, drafting Rule 43 applications or other applications which may need to be brought in your matter, addressing legal letters to deal with or record certain issues, drafting settlement agreements and parenting plans which are legally binding and complete.
Make an appointment to consult with a divorce lawyer, and prepare necessary and useful documentation which your divorce lawyer may need during that consultation or they request.
This includes the original divorce order (or a copy), copies of ID documents/birth certificates, copies of your bank statements and documentary proof of your assets and liabilities, copies of your salary slips, a breakdown of your monthly income and expenditure, any documents which show your spouse’s assets, liabilities, income or expenditure, and any documentary proof of any particular issues affecting your divorce or which you want to discuss/query with your divorce lawyer.
If you are missing any documents, you do not have to delay the consultation. Your divorce lawyer will still be able to advise you on the interim information you can provide them.
Divorces are final on the date that the Judge grants the decree of divorce which will be included in the Final Divorce Order.
Although the Final Divorce Order will need to be typed up, signed and stamped before it can be provided to you, which can take several weeks, you are divorced from the day that the Judge heard the matter and granted the decree of divorce in Court.
Even if there is an appeal by the other party, appeals are limited to dealing with the issues in dispute in the divorce that we decided by the Judge and not the decree of divorce itself.
The Court itself will inform the Department of Home Affairs to alter their records to reflect the divorce, but administrative errors can still occur.
Third parties may still require the Final Divorce Order as proof of the divorce, but you can ask your divorce lawyer to draft a letter confirming that you are divorced and you can provide the third parties with a copy of any Settlement Agreement while you wait for the Final Divorce Order.
Divorces can take anywhere between a few months to many years to be finalised, depending on the specific circumstances of the matter. The earlier parties can settle the divorce between them, or settle particular issues in the divorce to reduce the number of days for any trial, the faster the process is to get a Final Divorce Order.
If the parties settle before instituting the divorce, or shortly after, then it will only take a few months to allow for enough time for the mandatory procedural requirements in the Divorce Act and the Court Rules to be followed.
If there are multiple issues in dispute that the parties cannot agree on before the trial and/or complex issues which require expert evidence and more time to be spent at trial arguing the matter, then the number of days required for the trial will increase and the earliest dates the Court can assign for trial will be much later, including a year or more after request.
Before a divorce is finalised, you can be entitled to spousal maintenance if your earning capacity is less than that of your spouse. This includes being retained on the Medical Aid.
The Children’s Act sets out the parental responsibilities and rights applicable to divorces involving minor children, namely care, contact, guardianship and maintenance.
Rule 43 proceedings are proceedings in divorce actions which you can bring to obtain a Court Order early in the divorce process to enforce your rights and be granted interim relief on these types of issues. In Rule 43 applications you can request an order that includes a contribution be made by your spouse towards your legal costs and orders for your spouse to continue to pay certain expenses so that you aren’t forced to incur these.
You may also be entitled to certain proprietary claims even before the divorce is finalised, depending on the matrimonial property regime, even if this is just about being placed into possession of your own personal items or assets, in particular your personal effects.
Consult with a divorce lawyer who can provide you with specific expert advice on your particular situation so that you can take the best approach in the matter.
You will provide your divorce lawyer with the details for you and your spouse, the date, time and place of the marriage and details of the matrimonial property regime (together with the marriage certificate or a copy), the details of any minor children, your instructions for care, contact and child maintenance for any minor children, your instructions for any spousal maintenance and the details of any other specific issues to your situation for them to draft the divorce summons.
Once the divorce summons has completed (which includes an Annexure A document for you to sign before a commissioner of oaths if there are any minor children in the matter), it is sent to be issued by the Court who will assign it with a case number.
The divorce summons is then sent for service on your spouse by the Sheriff, who must personally serve the document as required by the Divorce Act. Once this has been served, the clock begins running on the procedural aspects and requirements of the divorce.
After separating, and before the divorce, you should consult with your divorce lawyer and follow their advice as much as possible, as you do not want to undermine your own case. If your divorce lawyer specifically tells you to do something, or not do something, going forward in the divorce proceedings then there is a reason for it.
The most frequent issues encountered in divorces are where the children are used as pawns against the other person, by refusing to pay maintenance or creating issues with care and contact, or when one spouse tries to divest themself of assets to avoid the proprietary consequences of the divorce.
You should also be cautious about attempts by your spouse to reconcile, as these could be genuine or these could be done with the intention of undermining particular claims by you in your divorce papers, avoid/remove their own issues or be opportunistic to try and effectively reset matters if it becomes clear that they are suffering losses in the divorce.
It should also be noted that you do not have to go into any details, if the divorce is settled or proceeds on an unopposed basis, for the breakdown of the divorce if you and your spouse have been separated and living apart from one another for a continuous period of one year or more, as the Court will accept that the marriage has irretrievably broken down on this basis alone.
Some general rules of thumb:
- don’t use the children as pawns against your spouse in any manner;
- don’t prevent your spouse from having appropriate contact (without actual good cause for why this would endanger the children) even if your spouse won’t pay maintenance;
- don’t refuse to pay maintenance, even if your spouse is denying you contact;
- don’t refuse to pay any maintenance whatsoever (including spousal maintenance) pending the finalisation of the divorce, even if you cannot contribute much, as you must try and at least contribute something instead of nothing;
- don’t interfere with your spouse at their home or work now that you are separated;
- don’t refuse reasonable requests by your spouse to access the home to collect their own items or to value a property, particularly if they are a co-owner;
- don’t hide or get rid of assets, particularly as this is bound to be discovered and your actions will then undermine your own case before a Judge (and your spouse can still have a proprietary claim post-divorce if they discover this);
- don’t refuse to co-operate with the other side in the divorce process, including opportunities to try and settle the divorce.
Unopposed Divorce
An unopposed divorce is one which has not been defended by your spouse. The relief sought in your particulars of claim will usually be granted by a court hearing the unopposed divorce. If your spouse has not defended the divorce action after 10 working days from the summons being served on them, you can ask the court to set the divorce action down on the court roll for an unopposed divorce to be heard.
An unopposed divorce can also happen where the matter has been defended but the parties have reached agreement on the settlement of the divorce action, or where the matter has been defended but your spouse has been barred from delivering his Plea in reply to the relief requested in the Particulars of Claim.
The issued summons and particulars of claim is served personally on your spouse by the sheriff. After 10 working days where the divorce action is not defended, the matter can be set down on the court roll at a later date for an unopposed divorce.
In all divorce actions the court is required to hear oral evidence. You will enter the witness box and an attorney/advocate will lead you through your evidence that you give to the court. This evidence sets out for the court the circumstances of the breakdown of the marriage and discloses whether there is any agreement on settlement of the divorce and what arrangements are in placed for the parenting of any minor children.NB: Don’t forget to bring your original marriage certificate or the presiding officer may refuse to divorce you and will adjourn the matter to another date instead. Where a settlement agreement and parenting plan has been drafted and signed, this would ordinarily be sent to the local Family Advocate’s office prior to the court date for an endorsement by their offices of the arrangements in respect of the minor children. Once the presiding officer has confirmed the decree of divorce, you are effectively divorced from that moment.
Once the divorce is granted by the presiding officer, the court file will go to the court typist to type up and officially stamp the court order before it is then sent through to the offices of your attorney. On average you can expect the divorce order to be received within 2 weeks from the date of divorce.
The cost of a divorce will vary depending on the legal fee rate of your attorneys and the amount of work done by them in finalising the divorce.
In a High Court divorce an advocate is usually briefed to appear on the date of the unopposed divorce, and their fee will also vary depending on your area and on their seniority. For an unopposed divorce you can request that your attorney brief a cost-effective junior advocate, as it is not a complicated process.
Divorce
Don’t panic. A divorce action summons must be served on you personally, and if this has not been done then there has not been proper service. Call the offices of the attorneys listed on the summons and inform them of this. They must then have the summons served again, which will allow you time to collect your thoughts. If there has been personal service, you have 10 working days from the service of the summons on you to simply defend the matter by delivering a Notice of Intention to Defend. Once the matter has been defended by delivering a Notice of Intention to Defend to your spouse’s attorneys, you have 20 working days to consult with your attorneys and to deliver your Plea and your Counterclaim in the divorce action. Your Plea responds to the contents of the Particulars of Claim attached to the summons served on you, and the Counterclaim sets out your position and what you want from the divorce action. So breathe, take a moment to collect your thoughts and start to prepare what you will need to ask your attorneys and what your intentions are in the divorce action.
There is unfortunately no clear cut answer to this. Certain legal processes have to first be followed before you can apply for a trial date for the opposed divorce to be heard. The trial date you are provided with will depend on any unforeseen circumstances in the matter and will depend on what the earliest available dates are for the court to hear the divorce action. The number of days that the trial will need to run will decrease the chances of getting an earlier date, and unfortunately if the trial is not finalised in the number of days provided for then the trial has to be adjourned to the next available date in the schedule of the presiding officer presiding over the trial. A divorce can take anything from 1 year to 3 years depending on the complexity.
The minimum legal processes that must first be finished before a trial date can be requested from the court are that:
– The pleadings by both parties (the documents setting out what you and your spouse want in the divorce action) must have closed;
– Discovery has been made of the documents that you and your spouse intend using at trial to support what you have asked for in the pleadings; and
– A Rule 37 conference between the legal representatives and the case flow management hearing must have taken place in which the issues in the divorce action are narrowed down and defined, and the matter is certified as being ready to proceed to trial.
Unfortunately this is like asking how long a piece of string is, as every divorce is unique and the cost to litigate the divorce action depends on what happens during the course of the matter (eg. whether subpoenas need to be issued, whether any applications need to be brought, the cost of experts witness reports and testimony at trial etc.).
The cost of a divorce will vary depending on the legal fee rate of your attorneys and the amount of work done by them in finalising the divorce. It will also need to take into account the fees of any advocate employed to perform any work during the course of the divorce action, and the costs of preparation of your attorneys and advocate for trial.
Unfortunately the more acrimonious the divorce, the more you can be expected to have to spend to litigate the matter as it will be more difficult to settle the divorce action. It is recommended that where there is a reasonable opportunity for settlement that you give this full and proper consideration, as you can otherwise expect to spend hundreds of thousands of Rands to take the matter to trial and run the trial. Alternatively you can try negotiate or mediate using one of our expert mediators in our firm.
A divorce can seem daunting with the legal fees that need to be paid to litigate it, particularly where your spouse earns a far higher income than you and can afford to hire more expensive legal representatives. In these situations it is recommended that you bring a Rule 43 application in the High Court against your spouse. The court will then make a decision on certain interim relief until the divorce is final, which includes an order that your spouse should contribute a particular amount towards payment of your legal costs. These applications are designed to provide both the parties with as much of an equal footing as possible when litigating the divorce, and you have the option to bring a Rule 43(6) application at a later stage if you should require a further contribution to costs. Keep in mind that you will still need to see where you can cut costs and what other funds you can obtain.
Spousal Maintenance
Enquire with your attorneys whether this issue can first be discussed with your spouse to see if your spouse will agree to pay voluntary maintenance to you. If they are unwilling to do so, then the recommended route to take would be a Rule 43 application in the High Court as this application allows for an order for interim spousal maintenance until a final divorce order is made at trial or following settlement.
(click the link here to visit our page on Rule 43 applications for more information)
(click on the following link here to be taken to our user-friendly online income and expenditure form to determine what monthly maintenance you need)
You can also bring a maintenance application in the maintenance court, but it will typically take several months before a maintenance order is made. If you proceed with this option then it is important to request the maintenance court at the first informal enquiry make an interim maintenance order until the matter is finally dealt with.
Unfortunately not. Remember that you are both now living apart from one another, and you each now have to cover more expenditure individually than you had to before. Any spousal maintenance included in the divorce order will only extend towards covering your reasonable expenditure needs, and not towards your luxurious expenditure. If you are used to a higher standard of living, you will need to either cut back on your expenses or find the means to earn the income needed to cover these expenses. It is recommended that you plan ahead for this during the course of the divorce itself. Ask us how to do that and we will assist you.
Rule 43 Applications
Rule 43 applications provide interim relief for the spouse bringing it until the final divorce order is made at trial or following settlement. A standard Rule 43 application deals with aspects of spousal maintenance, issues with respect to children and contributions to legal costs. It is particularly useful when the other spouse is the primary breadwinner, and is intended to put the parties on a more equal footing when litigating the divorce.If there is a change in circumstances, or the contribution to your legal costs runs out and it is necessary for your spouse to make a further contribution to your legal costs, you also have the option to bring a Rule 43(6) application dealing with the same content.
family and personal law
Family Law is not only about finding a legal strategy, it is about the emotions that drive the parties, which often perpetuates the conflict during the divorce and family law proceedings.
We provide practical solutions to family law matters that are creative, dynamic and innovative and which assist clients to transition through the divorce and family law process with minimal stress and anxiety by providing the clients with the necessary emotional tools to get past their obstacles and transform then into opportunities.
Antenuptial Contracts (ANC’s)
An antenuptial contract is one of the most important documents you will ever sign as it regulates your estate on divorce or death. It is a document which is completed and signed before you get married which sets out what matrimonial property regime will apply during the course of your marriage, and are only necessary when you are not getting married in community of property which is the default position in South African law.
child law
If you and the other parent of your child are experiencing difficulties exercising care of, and/or contact with your child, we can assist you by entering into discussions with the other party in an attempt to resolve the issues or by referring you to mediation with a properly trained and experienced mediator.
Whilst we will do our utmost to attempt to resolve issues without recourse to the court, should this not be successful, we are experienced in all forms of litigation in this regard and have a number of experts at our disposal to assist us should this becomes necessary.
Child Maintenance
If this is voluntary child maintenance then you can discuss this with the other parent and advise them that as you cannot afford to pay the higher amount you will be reducing the maintenance you are paying. This puts the ball in their court if they want to bring an application or not, and if they accept it then you avoid the cost altogether. If you are paying child maintenance in terms of a parenting plan, but where there is no court order, then the parenting plan may set out what options should be pursued or approach taken to resolve the issue first. If there is a court order in place which requires you to pay a set amount in child maintenance, and this is now unaffordable to you, then you will need to approach the nearest maintenance court in the area in which the child resides to apply for a reduction in the maintenance you are currently paying. You will need to set out on affidavit as to what has changed in your financial circumstances and put up supporting documents to show that you cannot afford to pay the maintenance set out in the court order. This will then follow the ordinary procedure of maintenance court proceedings whereby the court will decide after a formal enquiry is held whether there should be a reduction in the court ordered child maintenance you are paying.
If the child is a minor (younger than 18) then you can bring the application for them on their behalf. You will need to complete the standard maintenance application provided at the court together with a schedule of your income and expenses to set out what child maintenance should be paid.
The maintenance application calls upon the other parent to attend court for an informal enquiry on a specific day and to provide documents setting out what their financial circumstances are. There may be several informal enquiries that take place at maintenance court where the parties make submissions, provide further documents or discuss settlement. The matter is then adjourned to a specific date for a formal enquiry, where a final decision will be made on the maintenance to be paid. Some maintenance courts have a pre-trial date where the issues in dispute are defined and narrowed down before they will adjourn the matter on that day for a formal enquiry.
A formal enquiry works like a trial does in a legal action, in that oral evidence is given by the parties and submissions are made to the presiding officer (magistrate) based on the documents and the evidence given, following which the presiding officer makes a final decision.
If the other parent is not employed and does not appear to be earning an income, you can bring an application against the child’s grandparents (the parents of that unemployed parent) to contribute to the child’s maintenance instead. Note: Grandparents can only be required to pay for what is considered to be necessary expenses for the children (eg. groceries) and so this is far more limited.
A common complaint is that the other person is not covering “their half”. The amount of child maintenance each person is liable to pay is not divided equally between them, but is calculated on a pro-rata (proportionate) share based on your respective incomes. For example: if two parents are liable for child maintenance and one parent earns twice as much income as the other then that parent should contribute twice as much as the other parent (ie. at a ratio of 2:1). If the total monthly maintenance for the child was R18 000.00, then the pro rata share of what the parent earning double should contribute towards maintenance will be a total amount of R12 000.00. The pro rata share of the other parent will be a total amount of R6 000.00.
Courts also take into consideration the other contributions already being made by any person. If one person is paying the school fees for example then this expense by that person needs to be taken into account as this payment saves the other person from an additional monthly expense.
First look at what the average monthly expenditure is which is paid by you, and work out which of these monthly expenses are shared expenses (for the benefit of both you and your children eg. rent, groceries), your expenses (for the benefit of you only) and direct child expenses (for the benefit of the child(ren) only eg. nappies, toys, school fees). You will then need to fill in a schedule of monthly income and expenses under the separate columns for yourself and for each child with the amount of your monthly expenses on this basis. Expenses which are for the benefit of you only or the child only have the total amount filled in under the column for you or the child. Make sure to distinguish the different monthly expenses between each child (eg. nappies only in the column for the child needing those nappies, or the amount of school fees differing between two children based on which grade they are in). Shared expenses between you and the children are calculated on a basis of 2 parts per adult and 1 part per child (eg. ratio of 2:1 for one child, 2:1:1 for two children, 2:1:1:1 for three children etc.). To calculate the individual amounts to fill in under each column: take the monthly expense and divide it by the total for the relevant ratio (eg. 2:1 = 2+1 = 3 whereas 2:1:1 = 2+1+1 = 4), and then multiply that result by each individual ratio amount (ie. multiply by 2 for you as an adult and by 1 for a child).
For example, if rent is R12 000.00 per month and there is:
Note: It is important to keep a separate list of any monthly expenses being paid by the other person or maintenance contributions (eg. if they pay all or part of the school fees, medical expenses etc. or where they are already paying a monetary amount in maintenance) as the total amount of maintenance for each child should take into account what the total monthly expenses for both parties are for that child in calculating their pro rata share so that the amount of monetary maintenance can be determined.
For example, if the monthly expenses for the child which are paid by you are R12 000.00 per month and the other person pays directly educational and medical expenses in an amount of R6 000.00 per month, then the total monthly expense for the child is R18 000.00. If the other person’s income is double what yours is, they would then be liable for a pro rata share of R12 000.00 total in child maintenance. You would be liable for your pro rata share of R6 000.00.
If the other person is to continue to pay the educational and medical expenses of R6 000.00 per month directly (and not to yourself), then a monetary amount of R6 000.00 per month is the total amount that they are liable to pay in maintenance to you to meet the child’s monthly expenses. Note that only contributions which are paid directly and which are not paid directly to you can be used to reduce the amount of monetary maintenance.
Certain expenses are trickier to calculate when they are not regular, such as an annual once-off expense like renewing a TV licence or a constantly changing expense with a wide range from cheap to expensive like medical expenses. Once-off annual expenses are easy, as you only need to take the total amount you are required to pay for the year and divide it by 12 to get the monthly amount. Irregular expenses like medical expenses which are affected by use can be best calculated according to the total expenses for the previous 12 months divided by 12 to get an average expected monthly expense. If there is an expected increase (eg. recent medical diagnosis that will now require frequent medication etc.) then you can include the expected monthly cost of this based on the available information. This inclusion can then be justified to a court if disputed by the other person.
Child Abduction / Hague Convention matters
These are matters involving children who have been abducted, usually by the other parent, to another country where it now becomes difficult for the other parent to see the children and have the children returned to them. You need to first investigate which country the child has been abducted to and whether such country is a signatory to the Hague Convention. There are currently 93 countries which have signed the convention. The Hague Convention provides for a speedy return of an abducted child to their place of habitual residence.
Domestic violence
Domestic Violence comes in many forms, it does not always mean that the abuse is physical. For example, domestic violence may be in the form of verbal abuse, emotional abuse, physical abuse, financial abuse, or sexual abuse. As a parent you may have been in an abusive relationship, or you are currently in an abusive relationship.
Divorce Lawyer
A divorce lawyer is an attorney that specializes in the area of family law. Family Law is not limited to divorce actions, it incorporates many other facets of family related matters, which include child maintenance, relocation of a minor child or children, and care and contact arrangements of a minor child or children.
Divorce Procedure
The procedure of getting a divorce in South Africa is generally quite straightforward, however the process can be lengthy and arduous when a divorce is opposed and acrimonious. Divorce actions are instituted either in the High Court, or in the Regional Court, by way of issuing a Summons. The person bringing the divorce action is referred to as the Plaintiff. Divorce actions in the High Court, whilst more costly than divorce actions in the Regional Court, are preferable as the process is far more efficient. Once the Summons has been issued at Court, the Sheriff is required to effect personal service of the Summons on the Defendant.
The process after the Summons has been issued and served varies, depending on whether a divorce is opposed by the Defendant, or unopposed by the Defendant. Thereafter, the procedure of a divorce action goes through a number of stages namely:
Pleadings are the formal documents required for a divorce and include the Summons, Particulars of Claim, Notice of Intention to Defend, if the matter is opposed, a Plea, a Claim-in-Reconvention and a Plea to the Claim -in-Reconvention. After the Plea to the Claim-in-Reconvention has been filed and served, the pleadings are deemed to be closed.
The Discovery process entails each party requesting that the other party furnish documentation, and other material evidence, which that party intends to rely on at Trial. The parties are given an opportunity to read and consider the documents before Trial. In cases where a party fails, refuses or neglects to furnish documentation requested of that party, Subpoenas can be issued to the relevant organisation, banking institution or professional to furnish the documentation.
If a party is of the opinion that the other party is in possession of other relevant documents, or evidence, that party may issue a Notice to the Court to that effect requesting that party to further discover.
A Pre-Trial Conference is an informal conference which takes place after the close of the pleadings. The purpose of a Pre-Trial Conference is to narrow the issues in dispute and to determine whether settlement of the matter is possible.
An application for a Trial date is generally made by the Plaintiff to the Registrar of the High Court, who will then allocate a date.
If a divorce action is unopposed then the Plaintiff may make an application for and set down of a Trial date after the time period within which the Defendant had to file and serve a Notice of Intention to Defend the action, has lapsed.
The Trial procedure entails both parties legal representatives, making representations and submissions to the Court as to the issues which are in agreement and those issues which are in dispute. In High Court matters, if a legal representative does not have a right of appearance in the High Court an Advocate will be instructed to represent the party in Court.
At the conclusion of the Trial, a judgement will be handed down as to the decision which the Trial Judge has made.
THE REQUIREMENT FOR MEDIATION IN THE DIVORCE PROCEDURE
In accordance with the uniform Rule of Court, as of the 9th March 2020, a Plaintiff is now required to invite and give Notice to the Defendant as to whether the Plaintiff agrees or opposes mediation of the issues at hand, and setting out the reasons therefore. The premise for such addition to the divorce process is to try and settle matters in a more cost effective and speedy manner.
Divorce lawyers are particularly equipped to provide expert advice on divorces and how to deal with the specific issues that arise in divorces. They are also aware of what the procedural requirements or restrictions are for the divorce process to get it to trial and be ready to argue. Divorce lawyers are responsible primarily for drafting the divorce papers, drafting Rule 43 applications or other applications which may need to be brought in your matter, addressing legal letters to deal with or record certain issues, drafting settlement agreements and parenting plans which are legally binding and complete.
Divorce lawyers that have specialised in divorce law, as opposed to lawyers who perform the odd divorce from time to time, are an invaluable resource, as they can provide you with far more accurate advice on how to deal with your divorce based on their expertise and their experience of previous divorces and similar situations. Divorce lawyers have vast knowledge of the decisions which Judges are more likely to make on any particular issue in the divorce, and how certain actions tend to be viewed by the Courts. Divorce lawyers know what Judges are looking for and what types of documentation or evidence will be important to a favourable outcome for you.
Make an appointment to consult with a divorce lawyer, and prepare necessary and useful documentation which your divorce lawyer may need during that consultation or they request. This includes the original divorce order (or a copy), copies of ID documents/birth certificates, copies of your bank statements and documentary proof of your assets and liabilities, copies of your salary slips, a breakdown of your monthly income and expenditure, any documents which show your spouse’s assets, liabilities, income or expenditure, and any documentary proof of any particular issues affecting your divorce or which you want to discuss/query with your divorce lawyer. If you are missing any documents, you do not have to delay the consultation. Your divorce lawyer will still be able to advise you on the interim information you can provide them.
Divorces can take anywhere between a few months to many years to be finalised, depending on the specific circumstances of the matter. The earlier parties can settle the divorce between them, or settle particular issues in the divorce to reduce the number of days for any trial, the faster the process is to get a Final Divorce Order. If the parties settle before instituting the divorce, or shortly after, then it will only take a few months to allow for enough time for the mandatory procedural requirements in the Divorce Act and the Court Rules to be followed. If there are multiple issues in dispute that the parties cannot agree on before the trial and/or complex issues which require expert evidence and more time to be spent at trial arguing the matter, then the number of days required for the trial will increase and the earliest dates the Court can assign for trial will be much later, including a year or more after request.
Before a divorce is finalised, you can be entitled to spousal maintenance if your earning capacity is less than that of your spouse. This includes being retained on the Medical Aid. The Children’s Act sets out the parental responsibilities and rights applicable to divorces involving minor children, namely care, contact, guardianship and maintenance. Rule 43 proceedings are proceedings in divorce actions which you can bring to obtain a Court Order early in the divorce process to enforce your rights and be granted interim relief on these types of issues. In Rule 43 applications you can request an order that includes a contribution be made by your spouse towards your legal costs and orders for your spouse to continue to pay certain expenses so that you aren’t forced to incur these. You may also be entitled to certain proprietary claims even before the divorce is finalised, depending on the matrimonial property regime, even if this is just about being placed into possession of your own personal items or assets, in particular your personal effects.
Consult with a divorce lawyer who can provide you with specific expert advice on your particular situation so that you can take the best approach in the matter. You will provide your divorce lawyer with the details for you and your spouse, the date, time and place of the marriage and details of the matrimonial property regime (together with the marriage certificate or a copy), the details of any minor children, your instructions for care, contact and child maintenance for any minor children, your instructions for any spousal maintenance and the details of any other specific issues to your situation for them to draft the divorce summons. Once the divorce summons has completed (which includes an Annexure A document for you to sign before a commissioner of oaths if there are any minor children in the matter), it is sent to be issued by the Court who will assign it with a case number. The divorce summons is then sent for service on your spouse by the Sheriff, who must personally serve the document as required by the Divorce Act. Once this has been served, the clock begins running on the procedural aspects and requirements of the divorce.
After separating, and before the divorce, you should consult with your divorce lawyer and follow their advice as much as possible, as you do not want to undermine your own case. If your divorce lawyer specifically tells you to do something, or not do something, going forward in the divorce proceedings then there is a reason for it. The most frequent issues encountered in divorces are where the children are used as pawns against the other person, by refusing to pay maintenance or creating issues with care and contact, or when one spouse tries to divest themself of assets to avoid the proprietary consequences of the divorce. You should also be cautious about attempts by your spouse to reconcile, as these could be genuine or these could be done with the intention of undermining particular claims by you in your divorce papers, avoid/remove their own issues or be opportunistic to try and effectively reset matters if it becomes clear that they are suffering losses in the divorce. It should also be noted that you do not have to go into any details, if the divorce is settled or proceeds on an unopposed basis, for the breakdown of the divorce if you and your spouse have been separated and living apart from one another for a continuous period of one year or more, as the Court will accept that the marriage has irretrievably broken down on this basis alone.
SOME GENERAL RULES OF THUMB:
- don’t use the children as pawns against your spouse in any manner;
- don’t prevent your spouse from having appropriate contact (without actual good cause for why this would endanger the children) even if your spouse won’t pay maintenance;
- don’t refuse to pay maintenance, even if your spouse is denying you contact;
- don’t refuse to pay any maintenance whatsoever (including spousal maintenance) pending the finalisation of the divorce, even if you cannot contribute much, as you must try and at least contribute something instead of nothing;
- don’t interfere with your spouse at their home or work now that you are separated;
- don’t refuse reasonable requests by your spouse to access the home to collect their own items or to value a property, particularly if they are a co-owner;
- don’t hide or get rid of assets, particularly as this is bound to be discovered and your actions will then undermine your own case before a Judge (and your spouse can still have a proprietary claim post-divorce if they discover this);
- don’t refuse to co-operate with the other side in the divorce process, including opportunities to try and settle the divorce.
Discovery is where you complete an affidavit setting out all the documents and correspondence which you will be using and relying upon in a trial to obtain the relief requested in your pleadings. Several discovery affidavits can be completed in a divorce action as new or updated documents and information is obtained.
These are documents in which the parties either set out what they want from the divorce action and their reasons for that, or reply to what the other party has said about what they want from the divorce action.
A summons is the document which commences the divorce action, and the particulars of claim attached to the summons sets out what you want from the divorce action and why you are entitled to the relief you have requested.