The First Consultation of Divorce

When you approach an attorney to assist you with divorce, there are some topics that should always be covered in the first consultation irrespective of your specific circumstances.

These topics include, but are not limited to:

1. The prohibition of being exposed to domestic violence (such as physical & verbal abuse, withhold of funds, stalking, unlawful eviction etc.)

2. The rights and obligations of each party in respect of the matrimonial property regime (in community/out of community/the accrual);

3. The rights and obligations of spousal maintenance;

4. The rights and obligations of maintenance for minor children;

5. An explanation of the legal process to follow.

The attorney will request detailed information about yourself, your soon to be ex-spouse, children and assets. In addition, the attorney should give you legal advice based on your specific circumstances regarding the above-mentioned topics, answer any questions you may have and explain how his legal fees will be charged.

For the purpose of this information resource, we will elaborate on number 5 above; an explanation of the legal process of divorce.

First and foremost, there is a big difference in cost and time between matters that are defended and undefended (or uncontested). Undefended matters are finalised faster and cheaper than defended matters.

In order to get divorced, you need a Final Order of Divorce. This is a Court Order that has been granted after you have successfully made your case to the presiding officer (Magistrate or Judge). The process to obtain a Final Order of Divorce starts with the issuing of Summons (the Summons is accompanied by the “Particulars of Claim”, but for purposes of this resource both will be referred to simply as the Summons).

Summons is a legal document that needs to be drafted in a specific way to comply with the plethora of Court Rules. It must contain the necessary averments and annexures in order to successfully prove your case.

A very important aspect thereof is the grounds upon which you are requesting a divorce. The Divorce Act states on which grounds divorce can be granted, which most commonly are:

1. The marriage relationship has irretrievably broken down and reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship;

2. That the parties have not lived together as husband and wife for a continuous period of at least one year immediately prior to the date of instituting the divorce;

3. That your soon to be ex-spouse has committed adultery and that you find it irreconcilable with a continued marriage relationship.

There are three other grounds relating to habitual criminal, mental illness and continuous unconsciousness, however this is uncommon and will not be elaborated herein.

If you are the one issuing the Summons you are called the “Plaintiff” and the other party the “Defendant”. The Summons is issued by the Clerk/Registrar of the Court, in other words it is given a Case Number and a court file is opened. Thereafter the Summons is taken to the Sheriff of the Court to be served on the Defendant. The Sheriff of the Court is effectively the “hands of the Court” and is tasked with the actual executing/enforcing of the Rules of Court or Court Orders. There are many Sheriffs offices around the Republic, each with its own designated area it works in.

The Sheriff gives feedback called a “Return of Service” whether the Summons was successfully served or not, and how it was served.

If minor children are involved the Summons is taken to the Family Advocate. Like the Sheriff there are many offices of the Family Advocate situated around the Republic. The Family Advocate’s job (in short) is to ensure that the welfare of each minor child is properly taken care of.

Once the Sheriff has served the Summons on the Defendant, he has 10 court days (or working days) after service on him/her to defend the Summons. This is the point where the process can follow one of two routes, being defended or undefended. It is also possible that the parties have agreed to be divorced and concluded a “Settlement Agreement” even before issuing of Summons (therefore it will be an undefended Summons). We will elaborate on an undefended Summons.

Once the 10 court days have lapsed the Plaintiff can apply for a hearing date. This is done by obtaining a date from the Clerk/Registrar and filled in a “Notice of Set Down” which must also be served on the Defendant. The Summons, Return of Service and Notice of Set Down is bound, paginated and indexed. On the hearing date the Plaintiff must appear and present his case to the presiding officer and request that a Final Order of Divorce be granted.

On the other hand, if the Summons is defended by the Defendant, he will deliver a Notice of Intention to Defend to the Plaintiff. A defended Summons follows a much longer and complex process.

That concludes the process in a nutshell. Note that this resource is just a brief elaboration and there are many nuances on which your attorney can advise you on. If your Summons is defended or if you seek full advice on your specific circumstances, you are welcome to Contact us.