Initiating a divorce may be quite daunting - Where to start? Who to see? When to begin? We have the answers.
First thing's first: it would be in your best interest to consult your attorney before initiating proceedings. It is possible to represent yourself in court for divorce proceedings, however, South Africa has the most written laws (legislation) in the world and this makes obtaining the best possible outcome in your divorce very difficult without an in-depth knowledge of the applicable law.
Nevertheless, the divorce process starts with issuing summons. A summons simply refers to a document that sets out the reasons for the divorce, together with what you will be claiming from the estate of your spouse and the custody arrangements regarding minor children. If there are minor children involved, the Family Advocate has to be informed. The Family Advocate is tasked with determining what would be in the best interests of the children when determining care, living and financial arrangements.
Contrary to popular belief, divorce proceedings do not necessarily have to be instituted in the High Court. Since 2010, a divorce may run in the Regional Division of a Magistrate’s Court.
After approaching the Court to have the summons issued, it is then personally served on your spouse by a Sheriff of the relevant court. Your spouse has 10 days to respond to the summons and indicate whether he/she/they intends to defend the matter. Once this period has elapsed the matter may be placed on the court roll. If your spouse lives in another province, this period is extended to 20 days.
Based on your spouse’s response, you will be able to establish whether your divorce will be opposed or unopposed. This simply means that you should be able to determine if your spouse is going to defend the matter, if you and your spouse agree on all the terms of the proposed divorce, or if your spouse is willing to negotiate a settlement agreement. If your spouse does not respond to the summons within the prescribed period, the court may grant an order of divorce in your their absence.
The divorce order is not merely a once off document which brings the marriage to an end. The order also has far reaching effects on your future interactions with your soon to be ex-spouse, regulating financial and personal consequences, and it will also become the guiding document where there are minor children involved. Therefore, if your divorce becomes opposed and have not yet seen an attorney by that time, it is imperative to seek legal advice so as to ensure the best possible outcome for yourself and your children.
At VST Attorneys, we encourage our clients to use all possible alternatives to battling it out in court and aim to achieve an out of court settlement agreement which the parties actively participate in concluding. We offer mediation services, facilitate round table negotiations to resolve contentious issues, and go so far as to offer a fixed fee for a divorce where the parties have been able to reach an agreement on the terms of their divorce.