How does divorce work? An expert answers

By Drum Digital
17 October 2016

Here’s what you need to know about the process of divorce

By Dr Mkhuseli Vimba

Every couple who gets married hopes to live “happily ever after”, but life doesn’t always work out like that and the statistics for divorce in South Africa remains high.

:

Which court hears divorce cases?

Your regional magistrate’s court and the High Court have jurisdiction (the authority to make legal decisions and judgements) over divorce matters.

One or both of the parties must be based in the court’s area of jurisdiction on the date the action is instituted, or ordinarily a resident there, and have been living in SA for at least a year before then.

Here’s how the divorce process works:

STEP 1: ISSUING OF DIVORCE SUMMONS

The issuing of a summons by a court is the first step. This person seeking the divorce and who begins the process is called the “plaintiff”. The summons contains details of the parties involved, the date they got married, reasons for the divorce and details of what the plaintiff wants from the divorce.

The latter includes, among other things, reallocation of assets, maintenance, custody of children and any other matter the plaintiff considers necessary or would like the court to consider.

STEP 2: PLEADINGS AND COUNTERCLAIM

The Sheriff of the Court delivers the summons. The receiver, known as the “defendant”, can then file their response – this is called a “plea”. It comes with a document called a “counterclaim”, which is a response to the summons.

STEP 3: PLAINTIFF’S PLEA

Within the period of time set by the court’s rules, the plaintiff responds to the counterclaim with a plea of their own. This documentation is called “pleadings”.

STEP 4: APPLICATION FOR TRIAL DATE

The plaintiff applies for a trial date. The waiting time varies from region to region. Divorce usually takes 10 to 15 months in the High Court and less at a Regional Court. If parties cooperate, the divorce can be finalised more quickly.

STEP 5: DISCOVERY PROCESS

“Discovery” is a legal mechanism designed for gathering information about either party, and finding out what arguments each intends to use in order to better prepare a defence. This can be time-consuming, frustrating and expensive, but it’s important.

There are five steps in the discovery process:

Disclosure: Parties exchange documents and must respond within 30 days.

Interrogatories: Each side sends questions to the other, with 30 days to respond.

Admission of facts: Each party submits facts the other must either admit to or deny.

Request for production: This is used to obtain documents such as bank statements and any other document the party might deem relevant to the case.

Deposition: Sworn statements from the parties and any witnesses. Information

in a deposition can be used in court if an agreement cannot be reached.

STEP 6: FINALISATION

It’s common for parties to settle the matter out of court, too. In this instance, either the attorneys or parties themselves draw up an Agreement of Settlement.

Once the agreement is signed by the parties, the divorce process is settled.

Parties can then obtain a final order of divorce without going to trial.

Settlement is very common in cases where parties undergo mediation or decide to resolve their differences.

If an agreement is not signed during the pleadings or after mediation, a trial would be held. Customarily an Agreement of Settlement is then entered into a court and signed by the parties and a final order of divorce is granted.

*This information is intended for educational purposes only and does not constitute legal advice. It may not be used in any legal proceedings and in cases of practical problems, readers are advised to seek legal advice.

Find Love!

Men
Women