This article gives a brief overview of the normal divorce procedure, and how the procedure differs if the parties are able to reach an agreement before even issuing a summons for divorce. It also underlines the benefits of concluding a settlement at an early stage.
Normal procedure in an opposed divorce:
Divorce proceedings can lead to a long, drawn-out and very expensive procedure if the parties are not able to reach a settlement before going to trial. Once the plaintiff issues a summons for divorce and the summons has been served on the defendant, the defendant has ten days to defend the matter, and a further twenty days to answer to the allegations contained in the particulars of the claim. Because divorce proceedings can take years to finalise, especially in the High Court, there is also the possibility of an interim maintenance application in both the Regional and High Court, which leads to further delays.
Once both parties have discovered what documentation they wish to use at trial, a pre-trial conference needs to be conducted in order for the court to determine whether the matter is trial ready. If the matter is declared trial ready, a trial date will be allocated, and the parties can be up to three years down the line from the date of issuing the summons.
Settlement before the summons has been issued:
The abovementioned procedure can be avoided to a large extent, if the parties who decide to get divorced, agree to do so on an amicable basis from the start, and is able to reach a settlement before instituting legal proceedings. The settlement agreement in divorce proceedings is referred to as a “consent paper”.
Especially in divorces with regards to marriages in community of property, or marriages out of community of property where the parties do not have substantial assets to divide, it is a viable option to conclude a settlement as soon as possible, as the division of the assets should be fairly simple.
The parties need to address all the patrimonial consequences of the divorce in the consent paper. An agreement needs to be reached on the division of movable and immovable assets, and the possible realisation of certain assets in order to make the division of the assets easier. Furthermore, if there are minor children involved in the divorce, a settlement needs to be reached as to with which parent the minor children will reside, and the visiting rights of the other parent. The maintenance of the minor children will also need to be addressed, and the possible rehabilitative/lifelong maintenance of a maintenance dependent spouse.
Procedure of a settled divorce:
If the parties reach a settlement by means of a consent paper before a summons is issued, the consent paper will be attached to the particulars of the claim of the summons. The summons will still need to be issued and served by the sheriff on the defendant. Once the summons has been served, and the ten days to defend the matter has passed (which will happen in a case which was settled before the issuing of the summons), the plaintiff in the matter can request a date from the registrar of the court on the unopposed roll. Once a date is received, the matter still needs to be set down in accordance with the rules of court, and the defendant needs to be notified of the date. However, on the court date itself, only the plaintiff and his/her legal representative need to be in court. The terms of the consent paper will then form part of the divorce order.
Benefits of an early settlement:
The benefits of reaching an early settlement in a divorce are that the parties will not have to spend large sums on legal costs, which would be the case if a divorce is opposed and go to trial. It will also ensure the swift conclusion of the matter, which can be concluded in a few months. Children benefit from a swift settlement of a divorce, as they do not have to live through a drawn-out legal battle, in which they usually become bargaining tools. Thus, an early settlement is an outcome which should be endeavoured for, as it is in the best interests of all parties involved.
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)