Contested and Uncontested Divorce

Uncontested Divorce

Parties to divorce proceedings may enter into a settlement agreement at any time before or during the divorce proceedings (whether summons has been issued or not), agreeing on all aspects relating to the dissolution of their marriage, which will include:

  • Division of assets;
  • Custody (care) of minor children;
  • Maintenance of minor children;
  • Accrual.

There will be no formal trial (with examinations of parties by opposing legal representatives) and only one party is required to appear in court on the day of the divorce.

A divorce can also be finalised on an uncontested basis if your spouse (as the Defendant) failed to enter an appearance to defend within 10 (ten) days after the Sheriff has personally served him or her with the divorce summons. In such an instance you (as the Plaintiff) may proceed to enrol the divorce as an uncontested divorce on the court roll based on the fact that your spouse did not enter an appearance to defend the divorce.

It is important that, when you receive a divorce summons from your spouse and you do not agree with your spouse’s claims, you defend the summons timeously and within the 10 (ten) day period mentioned hereinabove.

Do I need to appear in court for an uncontested divorce?

One of the parties to the uncontested divorce action must appear in court on the day on which the uncontested divorce is enrolled for hearing.

The court must be satisfied by one of the parties to an uncontested divorce that the settlement agreement has indeed been signed by both parties and that they would like the divorce to be finalised as an uncontested divorce on the day. In general, it should be the party cited as the plaintiff who must appear in court.

Your divorce lawyer or her or his candidate attorney will accompany you to court for the finalisation of the uncontested divorce proceedings. Prior to the proceedings, you will also meet and consult with your Advocate, whom your divorce lawyer instructed to facilitate the uncontested divorce on the day.

How long does an uncontested divorce take?

An uncontested divorce can take between 2 and 6 months to finalise.

The sooner the parties sign a settlement agreement, the sooner the divorce summons can be issued to commence the uncontested divorce proceedings. Subsequent to the issue of the summons, it will be delivered to the Sheriff for personal service on the Defendant. If your spouse has not entered an appearance to defend after 10 (ten) days from the date of service of the divorce summons, your divorce lawyer may apply to the court for a date for the hearing of the uncontested divorce.

The court date will be communicated to you once it has been received from the Registrar of the court. This court date can be anywhere between a few weeks and a few months, depending on how congested the court roll is for uncontested divorces at the time.

Contested Divorce

During a contested divorce the parties will normally each have their own divorce lawyer. A divorce becomes a contested divorce if the parties can’t agree on the terms of a settlement agreement and one of the parties issues summons for a divorce wherein that party (acting as the Plaintiff) sets out the terms on which he or she wants the divorce to be concluded. Naturally, the other party (acting as the Defendant) would not agree with the terms claimed by the Plaintiff and does not only defend the Plaintiff’s claim but will usually also institute a counter-claim with the terms on which the Defendant wants the divorce to be concluded.

During a contested divorce, the parties go through all the stages and steps required to prepare for a trial. These stages include the exchange of pleadings, an application for a trial date, one or more pre-trial conferences, the discovery of documents, trial and judgment. During the trial, the parties will themselves testify in court and will also be allowed to call witnesses to provide evidence in support of their respective claims and defences.

Although a lot of divorces commences as contested divorces, the majority turn into uncontested divorces at some period prior to the commencement of the trial when the parties enter into a settlement agreement.

A good divorce lawyer will ensure that the time limits prescribed by the court rules are always adhered to which greatly contributes to a contested divorce being finalised as swiftly as possible.

A contested divorce can take between 2 to 5 years to finalise depending on the complexity of the disputes and conduct of the parties. To ensure that the divorce is finalised as swiftly as possible, however, it is important that a client keeps a divorce lawyer abreast of all aspects which may have an impact on the divorce

Contested divorces are generally more costly than uncontested divorces. The total costs, although heavily variable, is mainly dependent on the conduct of the parties during the proceedings. Another factor which contributes to the high costs is the fact that the parties often require assistance from several expert witnesses to prove their claims. These expert witnesses may include:

  • Actuaries, to determine the amount and duration of maintenance contributions or child maintenance;
  • Forensic accountants, to examine both parties’ estates for purposes of division of joint estates or the determination of a possible accrual claim;
  • Child-care experts to assess with whom minor children should reside during and after the divorce.

Next Steps

Should you wish to make contact with one of our team members, kindly e-mail us at divorce@barnardinc.co.za or phone us on 0861 088 088.

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