A divorce action is instituted by the issuing of a summons. To start the divorce process you need to serve a Summons and it must be served personally on the defendant by the sheriff of the court.

There are typically two types of divorces, the contested or opposed divorce and the uncontested or unopposed. The latter type of divorce is the best and most cost-effective for all parties concerned. An uncontested divorce can be finalized in as little as 8 weeks. If a divorce is contested it may take between 2 – 3 years, but most contested divorces do settle long before they go on trial.

In South Africa, the marital regime of the parties determines how the assets will be divided upon dissolution of the marriage, the assets being those at the time of the divorce. A marriage can be dissolved even if one of the parties does not wish to get divorced.

The best option, if you can make it happen, is to do your divorce in an uncontested manner. An uncontested divorce is one in which you and your spouse work together to agree on the terms of your divorce. You will both consult with the same attorney, who will be unbiased and impartial. There is no formal trial, and only the plaintiff appears in court. In an uncontested divorce, the parties agree prior to the divorce on how to divide their assets and, if there are children involved, which parent will become the parent of primary residence and which will be the parent of alternate residence. A settlement agreement is then drafted with the help of the attorney, entered into (signed) by both parties, and made an order of the court. An uncontested divorce is without a doubt the least expensive type of divorce.

The contested divorce process consists of various stages:

1. Pleadings
Summons:
The divorce action is deemed to have been instituted on the date the summons was issued. Unless there is a settlement between the parties, the summons culminates in a trial and the delivery of a judgment.

The summons informs the defendant that if he/she disputes the plaintiff’s claim and wishes to defend the action, he/she must serve a notice to defend.

If a divorce summons is not served within 12 months of the date of its issue or, having been served, the plaintiff has not, within 12 months after the date of such service, taken further steps to proceed, the summons will lapse.

Plea:
After serving a notice of defence, the defendant must, within 20 court days, deliver a plea. In the plea, the defendant must either admit/deny/confess/avoid all the material facts alleged in the particulars of claim, and must clearly state the nature and the grounds of his/her defence, including any exception that he/she may have to the summons. The plea contains the basis of the defendant’s defence.

Counterclaim:
The defendant may deliver a counterclaim or claim in reconvention, setting out any counterclaim that he/she may have.

Plea to counterclaim and further pleadings:

If the plaintiff intends to defend the claim in reconvention, he/she must deliver a plea to the counterclaim within 10 court days of delivery of the counterclaim. Once that is done, the pleadings are closed.

2. Application for and set down of trial date and Pre-trial conference
The plaintiff then makes an application for a trial date, which the registrar will set down (allocate). If the plaintiff does not apply for a trial date within the prescribed number of days after the pleadings have been closed, the defendant may do so.

In order for a trial date to be allocated many courts require that the parties convene a pre-trial, the purpose of this meeting is to reduce the time required for the trial by limiting disputes and to attempt to settle certain disputes.

3.Discovery of documents
In the period between close of pleadings and waiting for a trial date, there is a process called discovery, during which each party demands to see the documentation and other material like tape recordings the other party intends to use at trial. Each and every document that a party will use at trial must be ‘discovered’, i.e. the other party must be given an opportunity to read the document before the trial commences.

An attorney may issue subpoenas to relevant financial institutions to deliver documents the other party failed to deliver.

4.Trial
The trial is a complex process in terms of which evidence is lead and witnesses are questioned and cross-examined. The purpose hereof is for the Court to ascertain the truth. A trial can last anything between a few hours to a couple of weeks, it all depends on the disputes the Courts have to decide upon.

5.Judgment
A divorce trial must culminate in the granting of judgment in terms of which an order will be made relating to the division of assets, maintenance payable and or custody to name a few.

6.Costs:
In giving judgment or in making any order including adjournment or amendment, the court may award such costs as may be just. These costs may also be subject to taxation. While costs are generally awarded to the successful party, this is not an immutable rule. A court may decide not to award costs at all or may apportion the costs of the proceedings between the parties.

Getting married is a beautiful union between two people which is an exciting and emotional time to be enjoyed by the couple. It can be easy to overlook the legal implications which go hand in hand with this union. It is, however, extremely important for the couple to put some thought into this before they get married. How the couple’s assets and debts are handled during their marriage and distributed when the marriage dissolves (either by death or divorce) is referred to as their matrimonial property system and is governed by the Matrimonial Property Act. In South African law there are three possible matrimonial property systems that a couple intending to get married can choose from:

1. Married in Community of Property
2. Married out of Community of Property with the exclusion of the Accrual System
3. Married out of Community of Property with the inclusion of the Accrual System

If a couple gets married without entering into an Antenuptial Contract the marriage will be one in Community of Property (this is the default system). In terms of this matrimonial property system, the couple will share everything evenly (including each other’s debt). The sharing of each other’s debt is why we always recommend that the couple enters into an Antenuptial Contract. If one partner is indebted to a creditor and they are married in community of property, the creditor can demand repayment from the debtor as well as the debtor’s spouse and can go further and attach the assets of either one of the partners in order to enforce repayment thereof. With an antenuptial contract in place, the creditor will only be in a position to demand repayment from the partner that incurred the debt. The debtor’s spouse and his/her assets are protected from such claims.

According to this matrimonial property system, the assets that each spouse brings into the marriage and accumulates during the subsistence of the marriage remain their own. There is a distinct divide between what each spouse owns. If either of the spouses has any debt before the marriage or incurs any debt after the marriage is entered into, the creditor can only enforce repayment thereof from the spouse that incurred the debt. When the marriage ends, either by death or divorce, each spouse retains all of their own assets that were brought into the marriage and which were accumulated during the marriage.

This is the most flexible option of the three matrimonial property systems. In this option, each spouse retains the assets that it had when they entered into the marriage. The assets that they accumulate during their marriage are however shared. The debts that each spouse incurs either before or during the marriage will, however, only be recoverable by the creditors from the spouse that incurred the debt. Again, this means that spouses and their assets are protected from the claims of creditors.

An Antenuptial Contract can be used as a valuable tool to regulate how your assets are divided and distributed upon termination of your marriage. Furthermore, it is the best form of protection from claims against your estate for debts incurred by your spouse. It is for this reason that we always recommend that you enter into a valid Antenuptial Contract before you get married. In order to do this, you will need to sign an Antenuptial Contract in front of a duly admitted Notary Public.

If you have not entered into an Antenuptial Contract you will be deemed to be married in Community of Property. If you would still like the protection of being married out of community of property you will need to follow a more lengthy and expensive procedure which involves bringing an application to the High Court in terms of Section 21 of the Matrimonial Property Act.

A parenting plan is an agreement entered into between the parents of a minor child governing various key aspects.

A parenting plan outlines how parents will raise their minor child, this agreement is often entered into after separation and/or divorce, but this is not a requirement.

It can focus on describing parenting arrangements such as:

• How decisions about the child are made;
• How information is shared between parents;
• When each parent will spend time with the child (Contact rights);
• Parental rights and responsibilities;
• How conflict between parents will be resolved; and
• How other parenting issues may be addressed.