DIFFORD UNDERWOOD INC.
ATTORNEYS, NOTARIES AND CONVEYANCERS
A divorce is regarded as opposed when the parties are unable to reach agreement on some or other aspects such as:
- with whom the minor children will primarily reside;
- the manner in which the parties’ estates are to be divided; or
- how much maintenance should be paid in respect of a child or spouse.
When formal divorce proceedings are instituted there are certain time limits imposed on the parties to the divorce to file certain documents known as pleadings at certain times. These time periods are stipulated by the Rules of Court. For example, when a Summons is served on a spouse, he or she has 10 court days from the date of service of the Summons within which to file a document known as an ‘Appearance to Defend’. The service of this document on the spouse who has instituted the divorce proceedings informs the spouse, his/her Attorney and the Court that the divorce is being defended or has become ‘opposed’.
It is the role of the spouses Attorneys to assist and advise the parties throughout the divorce process with a view to settling the matter in as amicable a manner as possible. The Attorneys will assist by negotiating in an attempt to resolve the outstanding disputes between the parties. If they do so successfully, the matter can then proceed as an ‘unopposed divorce’ or on an ‘unopposed’ basis.
If the parties cannot reach agreement despite attempts to do so the matter will need to proceed to Trial. This means that the case will be taken to Court and argued. Attorneys usually employ the assistance of Advocate’s to argue the matter when it gets to trial stage.
An unopposed divorce is one where the spouses are able to reach agreement, either between themselves or with the assistance of Attorneys as to the aspects of their divorce. In these instances, the agreement reached between the parties is reflected in a document known as a ‘Deed of Settlement’. The Deed of Settlement will set out the specific terms of the agreement reached between them such as how access will work where minor children are involved and what payments, if any, are to be made between the spouses.
Very often where agreement is reached between the parties in this manner, Summons will be issued with a copy of the signed Deed of Settlement attached to it. Once service of the Summons with the attached Deed of Settlement has taken place, which is a formality required in terms of the Rules of Court, the matter can be set down for hearing. The Deed of Settlement will then be incorporated in and made an Order of Court with the Decree of Divorce.
Divorces by Default
In certain instances, a divorce can be granted against the other spouse by default. In other words in his/her absence.
This usually happens when a Summons is served on a spouse and the spouse upon whom it is served fails to defend the matter by serving and filing an ‘Appearance to Defend’. (As explained under Opposed Divorces).
In terms of the Rules of Court, an Appearance to Defend must be served and filed within 10 court days of the Summons being served. If the spouse upon whom the Summons is served fails to serve and file an Appearance to Defend, the spouse who issued the Summons can set the divorce down for hearing. If the Presiding Officer hearing the matter is satisfied that proper service of the Summons has taken place, he/she may dissolve the marriage relationship by handing down a Decree of Divorce by default.
The divorce may also be granted by default in instances where the spouse upon whom the Summons is served, serves and files an ‘Appearance to Defend’ but thereafter fails to serve and file any further pleadings. In terms of the Rules of Court, once an Appearance to Defend has been served and filed, the opposing spouse must serve and file documents known as a ‘Plea’ and a ‘Counterclaim’ (also known as a ‘Claim in Reconvention’). If the opposing spouse fails to do so within 20 Court days of serving and filing the Appearance to Defend, the spouse who issued the Summons may give the other spouse notice to do so within 5 court days failing which, the matter can be set down and a request made for the Decree of Divorce to be handed down by default.
If both parties are domiciled and resident in South Africa, in terms of the Divorce Act 70 of 1979, a South African Court will have jurisdiction.
However more and more frequently couples do not both reside in South Africa. If the Defendant is resident outside of South Africa, the spouse that is permanently resident in South Africa, provided they have been permanently resident for a period of at least one year before the divorce, can institute the divorce proceedings from within South Africa. An Application has to be brought to Court in such instances for an Order confirming that the Divorce Summons can be served outside the borders of South Africa. In these instances, and with such an order, the Summons can be served either by a Process Server in the foreign country where the other spouse resides, or in certain circumstances by way of email.
In the event that you need further advice and assistance in this regard, please do not hesitate to contact our offices.