DIVORCE PROCEEDINGS SUMMARY:
There are two courts in South Africa that deal with Divorces. One is the High Court and the other is the Regional Court. However, most divorces go through the High Court.
A court has the jurisdiction or right to hear the divorce due to the fact that the parties/ party are domiciled within the area of the court and if they are an ordinarily resident within the area of the court.
There are two types of divorces. One is Unopposed which is the most popular as it is quicker, cheaper and an agreed settlement agreement is reached. The other is an opposed divorce which will go to trial which could take a number of years.
How do I start the divorce proceedings?
If applicable, we try to settle the matter and a settlement agreement is concluded between the parties. This is normally done at a round table meeting with both parties and their attorneys. They will then agree to what will be put into the settlement agreement and or parenting plan.
The formal process starts with a summons, which we draw and issue at court.
This document sets out the names of the parties, where the marriage took place, how the marriage has irretrievably broken down, if there are any children from the marriage and the prayer sought e.g. maintenance, divorce order, medical aid expenses to be paid etc.
Once issued at court, we then send the summons to the sheriff to be served on the other party (“Defendant”). This must be personal service.
The Defendant would have 10 days to serve their Notice of Intention to Defend, which is filed if the matter is not settled and if they intend to oppose the divorce.
The divorce can be settled at any time during the process, but we are happy to run it as an opposed matter if it cannot be settled.
Once that is all agreed on, a Notice of Set Down will be served and filed giving a date for the divorce proceedings where the divorce should be granted.
And if the matter is opposed?
It will have to go to trial.
If a matter is indeed opposed, the Defendant will then sent his notice of intention to defend. As stated above they have 10 business days to defend, however, if they live outside of the court’s jurisdiction they have 14 working days if they live within 150km from the court and a month if they live more then 150km from the court.
The matter is ultimately set down for trial which is the set down date for argument. Both parties will have to be present with their legal representatives and give evidence before a judge.
Once that is done and after argument judgment will be made.
How we can help you.
At Schwenn Incorporated, we can help you through your divorce process and give the necessary advice. Contact us at Charmaine@schwenninc.co.za or call us on 0310030630.