How to obtain a divorce

Issuing a summons

First step  following a consultation with the client would be to draft a combined summons consisting of two separate documents ,the summons and the particulars of claim.

The first part , the summons, sets out in detail your full names, sex, address and occupation and those of your spouse. It also informs your spouse that a claim is being brought against him (or her), and it advises him (or her) of a right to defend the action and the procedure that must be followed in order to do so.

The second part of the document is known as the particulars of claim . In divorce proceedings in which children are involved the plaintiff must also, in terms of the Mediation in Certain Divorce Matters Act, 1987, complete and attach to the summons a document referred to as Annexure A which sets out, under oath, certain information relating to the children and their future care.

Family advocates

The Mediation in Certain Divorce Matters Act, 1987, made provision for the creation of the office of the family advocate. The function of these advocates is, if requested by the court or a party, to inquire into and make recommendations regarding the welfare of any minor or dependent child involved in a divorce action or application regarding custody, guardianship or access arrangements. The Family Advocate’s impartiality and independence are often useful in resolving a dispute.

Serving a summons

After the summons has been drawn up, it must be stamped and issued by the Registrar of the High Court or Regional Court . The original summons and one copy must then be forwarded to the sheriff of the area in which the defendant lives so that it can be served. Thereafter the original summons and a report on the details of the service are returned to your attorney .

If the defendant’s whereabouts are unknown, the court may give permission for a shortened form of the summons to be published in a newspaper that the defendant is likely to read or, alternatively, for the summons to be served on a member of the defendant’s family who is known to be in contact with him or her. This procedure is known as substituted service. If the defendant does not react within the stated period, the case is set down for trial.

If the defendant is abroad  permission to institute divorce proceedings (called an application for leave to sue by edictal citation) must first be obtained .If successful, the summons, now known as a citation, will be drawn up in the usual way.  It will be issued and handed to the Registrar of the High Court to arrange for it to be served abroad .

Deciding whether to defend a summons

The summons usually allow the defendant 10 days (court days) to file notice of intention to defend, If the plaintiff’s spouse fails to respond to the summons within the stated period, the case can be set down immediately for hearing on an undefended basis.

If, the defendant denies allegations in the particulars of claim, a plea containing the denials and any counter-charges against the plaintiff must be filed. The plaintiff may file a reply to any allegations made by the defendant. Once this is done, the case may be set down for trial.

Divorce by consent is not allowed in South African law and person seeking the divorce must set out the grounds for the divorce ,the courts would accept an explanation along the lines that the there is no longer any love and affection between the parties.

It is possible for the parties to settle the matter on essential  issues ,usually that revolve mainly around the financial settlement, maintenance or custody of the children, if any are involved.The terms of which are drawn up by an attorneys in a document known as a draft settlement agreement, which has to be signed by both parties in the presence of witnesses. When the divorce is granted the terms of the draft settlement agreement are made an order of court.

 

Giving evidence in court 

In an undefended case, only the plaintiff .If the case is being defended, both parties and their witnesses must attend.

When the case is called, you will enter the witness box and take the oath or affirmation. In an undefended case, your advocate will ask questions designed to draw out the reasons for the breakdown of the marriage in the shortest and least painful manner.

The judge would want to be satisfied that the children of the family are being properly cared for, educated and maintained. In fact, a divorce will not be grant- ed if the judge has not been convinced that the arrangements for the children are the best possible under the circumstances.

Besides giving evidence of the breakdown of the marriage, you will have to produce your marriage certificate in court, and identify both your signature and that of your spouse on the draft settlement agreement, if there is one.

This simple procedure for undefended cases may be completed in a few minutes, but if a case is defended, there could be many more witnesses, cross-examination of both sides, and lengthy arguments by the lawyers. The hearing may then last for several days.

 

The decree of divorce 

If the judge finds that the case has been proved, the plaintiff will be granted an immediate decree of divorce.

The plaintiff’s attorney will receive a copy of the divorce order, with a copy of the settlement agreement, if there is one, attached to it. This is an extremely important document, which must be produced if, for example, either the plaintiff or the defendant decide to remarry. If you wanted to remarry immediately after your divorce has been granted, the marriage officer will normally accept a certificate from your attorney as proof of divorce if the divorce certificate is not yet available.

Your ex-spouse can obtain a certified copy of the divorce order by applying to the Registrar of the High Court.

The Costs 

The cost of a divorce action can vary considerably, depending on the complexity of the case, the amount of work involved in it for a lawyer, both before and during the court hearing, and particularly on whether or not the case is defended.

Rule 43 ,Interim Maintenance

Rule 43 of The Supreme Court Act 59 of 1959 , applies when a couple are divorcing and a spouse requires interim maintenance for herself/himself and any children born during their marriage.This maintenance would be for the period of the divorce process and would also cover a specified part of the legal costs of the applicant.

The Rule 43 order granted by the court covers the issue of interim maintenance while the divorce proceedings are being finalised, any maintenance after the divorce is still open to the court to decide.

The Application is supported by a founding affidavit to which the Respondent can reply in the form  of an answering affidavit, which must be be filed within 10 court days ,of him/her receiving the initial application .

The affidavits must be brief and to the point, unnecessarily lengthy affidavits  run the risk of not being considered by the court at all. Oral evidence would not be allowed ,except in some exceptional circumstance and only if requested to do so .

On the strength of the Affidavits the Court will establish the standard of living of both parties , before the divorce and interim maintenance will be awarded in accordance with these factors,the award will exclude any items considered to be luxury items.

The  the respondent’s  Answering Affidavit will contain details as to whether or not the maintenance being claimed by his former wife is over inflated ,in addition to whether he can afford to pay it.

The matter will be set down for hearing before a judge ,once the Affidavits have been filed in court .The Rule 43 order , after granted  will usually remain in effect, until the divorce action has been finalised.


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