We can assist you with the following:
There are typically two types of divorces, the contested or opposed divorce and the uncontested or unopposed. The latter type of divorce is the best and most cost-effective for all parties concerned. An uncontested divorce can be finalized in as little as 8 weeks. If a divorce is contested it may take between 2 - 3 years, but most contested divorces do settle long before they go on trial.
In South Africa, the marital regime of the parties determines how the assets will be divided upon dissolution of the marriage, the assets being those at the time of the divorce. A marriage can be dissolved even if one of the parties does not wish to get divorced.
The divorce action is deemed to have been instituted on the date the summons was issued. Unless there is a settlement between the parties, the summons culminates in a trial and the delivery of a judgment.
The summons informs the defendant that if he/she disputes the plaintiff's claim and wishes to defend the action, he/she must serve a notice to defend.
If a divorce summons is not served within 12 months of the date of its issue or, having been served, the plaintiff has not, within 12 months after the date of such service, taken further steps to proceed, the summons will lapse.
After serving a notice of defence, the defendant must, within 20 court days, deliver a plea. In the plea, the defendant must either admit/deny/confess/avoid all the material facts alleged in the particulars of claim, and must clearly state the nature and the grounds of his/her defence, including any exception that he/she may have to the summons. The plea contains the basis of the defendant’s defence.
The defendant may deliver a counterclaim or claim in reconvention, setting out any counterclaim that he/she may have.
Plea to counterclaim and further pleadings:
If the plaintiff intends to defend the claim in reconvention, he/she must deliver a plea to the counterclaim within 10 court days of delivery of the counterclaim. Once that is done, the pleadings are closed.
2. Application for and set down of trial date and Pre-trial conference
The plaintiff then makes an application for a trial date, which the registrar will set down (allocate). If the plaintiff does not apply for a trial date within the prescribed number of days after the pleadings have been closed, the defendant may do so.
In order for a trial date to be allocated many courts require that the parties convene a pre-trial, the purpose of this meeting is to reduce the time required for the trial by limiting disputes and to attempt to settle certain disputes.
3.Discovery of documents
In the period between close of pleadings and waiting for a trial date, there is a process called discovery, during which each party demands to see the documentation and other material like tape recordings the other party intends to use at trial. Each and every document that a party will use at trial must be ‘discovered’, i.e. the other party must be given an opportunity to read the document before the trial commences.
An attorney may issue subpoenas to relevant financial institutions to deliver documents the other party failed to deliver.
The trial is a complex process in terms of which evidence is lead and witnesses are questioned and cross-examined. The purpose hereof is for the Court to ascertain the truth. A trial can last anything between a few hours to a couple of weeks, it all depends on the disputes the Courts have to decide upon.
A divorce trial must culminate in the granting of judgment in terms of which an order will be made relating to the division of assets, maintenance payable and or custody to name a few.
In giving judgment or in making any order including adjournment or amendment, the court may award such costs as may be just. These costs may also be subject to taxation. While costs are generally awarded to the successful party, this is not an immutable rule. A court may decide not to award costs at all or may apportion the costs of the proceedings between the parties.
1. Married in Community of Property
2. Married out of Community of Property with the exclusion of the Accrual System
3. Married out of Community of Property with the inclusion of the Accrual System
If you have not entered into an Antenuptial Contract you will be deemed to be married in Community of Property. If you would still like the protection of being married out of community of property you will need to follow a more lengthy and expensive procedure which involves bringing an application to the High Court in terms of Section 21 of the Matrimonial Property Act.
A parenting plan outlines how parents will raise their minor child, this agreement is often entered into after separation and/or divorce, but this is not a requirement.
It can focus on describing parenting arrangements such as:
- How decisions about the child are made;
- How information is shared between parents;
- When each parent will spend time with the child (Contact rights);
- Parental rights and responsibilities;
- How conflict between parents will be resolved; and
- How other parenting issues may be addressed.
We have a relationship with experienced child phycologists and mediators and will request their inputs to ensure that the agreement is in the minor child's best interest.
In order for a parenting plan to be enforceable, the parenting plan must either be registered with the family advocate or made an order of court.
Should you have any queries or questions, please feel free to send us an email and we'll get back to you.
Pretoria | Sandton | Cape Town
Nelspruit | Centurion | Helderberg
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