With an increase in couples getting divorced over the national lockdown period, knowing your rights and the processes involved is of the utmost importance. However, to ensure that couples are not getting divorced as a means of avoiding their creditors, South African Law provides that a party is entitled to a divorce should they be able to prove that the other spouse is mentally ill, continuously unconscious, or that the marriage has been irretrievably broken down.
Instituting Divorce Proceedings
Divorce proceedings may be instituted in either the Regional Magistrate's Court or the High Court, either of which must have jurisdiction in the Plaintiff's (the person requesting that a divorce be granted) or the Defendant's residential area. A summons will be issued out of the relevant Court to initiate the process, whereafter it will be served on the Defendant by the Sheriff.
It is imperative that a divorce summons clearly states the reason for the divorce proceedings. Often, the reasoning will include the indication that there is no reasonable prospect of restoring the relationship between the parties. Further, the Summons must contain provisions for the division of the assets and liabilities in the joint estate (particularly if married in community of property) and the provision for the arrangements of any minor children borne from or adopted during the marriage.
Once service has been affected, and should the Defendant wish to oppose the divorce, the Defendant is required to file its notice of intention to oppose within 10 days after service. Should they not wish to oppose, they need not file any documents. This is referred to as an uncontested or default divorce and is the most cost-effective means for all parties concerned. The divorce is capable of being finalised within weeks rather than proceeding to long and drawn-out trials spanning over several years. The Defendant may, however, be required to file a notice of non-opposition to the Summons in order for the divorce to be finalised.
Should a couple wish to part ways amicably, it would be advisable to work together and come to an agreement as to the terms of the divorce. An impartial attorney will be able to assist both of you in drafting the necessary documents, which, in this instance, would include a settlement agreement (sometimes referred to as a consent paper). The settlement agreement will incorporate the terms of the agreement including, but not limited to:
- Division of the assets in the joint estate;
- Any care and custodial arrangements if there are minor children borne from the marriage; and
- Any child or spousal maintenance.
By going this route, a formal trial will be avoided, and it will only be necessary for the Plaintiff to appear in court.
So How Do You Enforce Maintenance Obligations?
Suppose the court has granted an order incorporating maintenance obligations, and the person is in arrears for no less than ten days. In that case, the party who is owed the maintenance may approach the Registrar or Clerk of the Court to assist with enforcing this obligation.
The Maintenance Act provides for three remedies available for enforcement, namely: a warrant of execution against property, an emolument attachment order, or an attachment of debt order.
Divorce proceedings are usually a strenuous process for all parties involved, especially where there are children or substantial assets involved. We, therefore, advise that you seek legal advice when considering your options to ensure that the process runs as smooth and efficiently as possible. Any error in the order granted by the court will result in a return to court to rectify the mistake, which could be costly.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.