In order for a divorce order to be granted legal action must be instituted by way of issue of Summons, which Summons is served on the other party who is given notice in terms of the Summons that he / she has 10 days within which to deliver a Notice of Intention to Defend.
Once such Notice is delivered, the divorce is regarded as a contested divorce. However, this would not prevent a settlement being reached thereafter between the parties, in which event the matter is removed from the opposed roll to the unopposed roll and finalized in Court accordingly.An unopposed divorce is a divorce in respect of which:-
- the other party did not deliver a Notice of Intention to Defend, in which event the party having instituted the action is entitled to an Order of Divorce together with the ancillary relief claimed, by default;
- an agreement is reached between the parties regulating all the consequences of the divorce. In such event the settlement agreement is made an Order of Court in its entirety [this is the position in all the provincial divisions of the High Court (excluding Durban and Pietermartizburg)]. The position in the Durban and Pietermaritzburg High Courts is that only such terms of the Agreement as may be incorporated in an Order of Divorce be so incorporated, such as maintenance, provisions concerning the “custody” and “rights of access to children” and an endorsement of a party’s pension fund to procure an immediate payout to the claiming party– the remaining terms would still have binding effect, contractually, between the parties.
As Divorce Lawyers, we always endeavour to procure a settlement on all the issues between the parties, so as to avoid the extensive legal costs of a contested divorce.
However, when a settlement agreement cannot reasonably be reached, our Divorce Attorneys are well qualified to assist in the subsequent Durban, Pinetown and Johannesburg Court proceedings in order that you may secure full protection of your rights.
In order for a normal divorce to be granted it must be alleged and proved that the marriage relationship between the parties has broken down irretrievably and that there are no reasonable prospects of the restoration of a normal marriage relationship.
As to the disentangling of the assets and liabilities of the joint estate it depends on the matrimonial system regulating your marriage. When married in community of property the joint estate would normally be equally divided and all types of permutations may be implemented, e.g., there is no need to sell all assets to pay all liabilities and distribute the proceeds among the parties, but assets may be awarded to one or the other party as they may prefer and the inequality may be addressed by a payment from one party to the other party. There is, however, one exception and that is that a party to a marriage in community of property may claim a forfeiture of benefits of the marriage in community of property from the other party, based on whether such party has contributed financially more to the joint estate than the other party, the duration of the marriage (the longer the marriage has endured, the less likely it is that the Court would grant a forfeiture) and the conduct of the parties leading to the breakdown of the marriage relationship.
In case the parties are married out of community of property without the accrual system, the only aspect that needs to be addressed is to ascertain which assets / liabilities incurred by both parties must be allocated to the party entitled to such asset and / or responsible to pay such liability.
In the case of a marriage out of community of property with the adoption of the accrual system, each of the parties has a right to claim 50% of the accrual in the estate of the other party, such accrual being the amount by which the estate of the other party has increased in value from the commencement of the marriage to the date of divorce.
Another ancillary issue involves the “custody” of minor children borne from the marriage and the rights of the other party to reasonable access to such minor children.
The new terminology in this regard is as to who should be appointed as the primary caregiver and provider of the minor childrens’ primary residence.
In all of the above the primary consideration of the Court, being the upper guardian of minor children, is the best interests of the minor children and the Family Advocate is often involved in investigating the said issues and may appear in Court to address the Court on his / her findings.
In the case where one or both the parties that has / have a pension fund/s, the law provides that in the division of the joint estate or the implementation of the accrual system, the pension fund may be ordered by the Court to effect an immediate payment to the claiming party of the amount to which the claimant is entitled to (despite the fact that the pension fund would normally have paid out, e.g. on retirement).
A further issue is payment of maintenance by the one party to the other party on the basis of securing that the claimant maintains the same standard of living had been enjoyed during the marriage and payment of maintenance in respect of the minor children, the obligation of both parties to pay same being proportionate to their means.
If you are looking for a Divorce Attorney in Durban, Pinetown or Johannesburg contact HHL to assist you in making informed decisions during this vunerable and difficult period of your life.