When I sit and think about what to write for these blog posts I try as far as possible to write about a topic which I have not seen anyone else write about in their newsletters or magazine articles and the like.
I have however been asked to write about divorce matters earlier this week. I have thought that the internet is already flooded with information and advice on this particular field of work which is done by most of the legal practitioners in my area. So- I reckoned- what difference shall it make if I am to write a blog post about this?
Well- I have been told by this interested member of the public- a lot of the information out there is written by lawyers for lawyers and is not easy enough to understand.
So- what if I wrote an article that enabled you to get your own divorce matter started and that pointed out to you what you are to be prepared for?
That is exactly what I intend to do with today's post!
1. When and why you should get divorced
Morality and religion aside- it may not always seem like it, but our law does not allow for people to get divorced just because they feel like it. This may be a shock to some, but even two people who have agreed to get divorced can get sent back home by the Court to go and sort out their marital problems before they get divorced. Why would this happen?
It is because the Court can only divorce a married couple for one or more of the following reasons:
The reasons in part (b) needs very little elaboration, but it is usually the reason in part (a) above that gets presented to Court and get motivated in a wide variety of ways.
What are problems to work through for some are for others reasons why a marriage can no longer be.
I am not going to try to limit the definition of "irretrievable breakdown", but will point out that the clearest indications that require the least elaboration on- if any- are the following:
1. Living apart for more than a year;
2. One of the parties having committed adultery while the other party does not want to be in an open marriage at all.
3. One of the parties having been declared a habitual criminal by the Court and not getting out of prison anytime soon.
There are other indications as well. Whatever you may think are signs that your marriage has broken down beyond all hope of repair shall accepted by the Court as a reason to get divorced as long as the Court does not believe that it is a problem that can be solved by counselling, talking things over or just taking some time to think it over.
2. How to get started
Divorce courts are accessible to the public without the need for a legal representative. If you want to get divorced without an attorney you can start proceedings 100% on your own. If you do so the only person that you will need to pay shall be the Sheriff. This is why...
Your Regional Court has a Registrar that can be approached during business hours. If they hear that you want to get divorced they will give you a form to fill out. Thus form is actually your summons. Personally- I don't like those summonses because I know I can draft much better summonses myself, but they are still good enough to get your divorce matter going.
The minimum amount of information that you need to fill in is the following:
1. The names and addresses of yourself and your spouse;
2. If you have children- their names. You shall in this case need to attach copies of their birth certificates;
3. Where and when you got married. Your marriage certificate needs to be on hand in court and a copy thereof needs to be attached to the summons.
4. Whether you are married in- or out of community of property. If you are married out of community of property you shall need to attach a copy of your antenuptual contract. If you don't have one you can obtain a copy from the Deeds Registry where the contract got registered. It does not cost that much.
5. Why you deem the marriage have irretrievably broken down.
6. Where the minor children shall live and how the parent who does not have the children living with him or her shall maintain contact with them.
If the above is all that you wish to fill in you can get divorced without an attorney.
If you do wish to claim maintenance either for yourself or your children from the other party- you will really want to appoint an attorney to help you. In most cases the other party can accept the fact that he is getting divorced and go along with it. The moment they hear that their money is being threatened, however, they rush to find the nearest attorney. Well- not all of the defendants do that. Some will go for the most expensive attorney or the one with the best reputation...
If the Defendant (that is the other party- the one that you are suing for divorce) does not do any of the above he/ she most likely does not have much money to worry about in the first place and you may wish to reconsider your own claims- at least with regard to the amounts that you are claiming...
With the summons having been filled out/ drawn up the Registrar then has to issue it with a case number. It may take couple of days. It it is not done within a week, though, you shall have to get help because summonses that are not issued within a week have a high likelihood of having gone missing (here in Mbombela).
If you do receive your summons with its case number you then have to hand it to the Sheriff in the area where the defendant lives. The Sheriff delivers the summons to the Defendant in person and then gives you a report stating when a copy of the summons was delivered to the Defendant.
The Court Rules provide for someone who receives a summons to give notice within two weeks that he/ she opposes any aspect of the divorce (like the amount of maintenance being claimed).
This is why you can only ask for your court date after two weeks from when the summons got served on the Defendant.
If the Defendant does enter appearance to defend you should rather get an attorney, because it is even possible for him/ her to get a court date without you knowing if he/she knows the court rules or is assisted by somebody who does. A Defendant who does this can even then go finalise the divorce without you knowing.
And this is how a divorce matter gets started.
Finishing one is another story altogether...
All that I will say is that you can easily get divorced in a month or two if you don't want any money from the Defendant. If you do claim money, though, you can expect the matter to drag on for years unless you have an attorney who know how to manage an opposed divorce.
I hope that this post is useful to someone out there and that he/ she shall be able to find his/ her way to getting the divorce action started. If any help is needed in finalising the matter you know who to call...
I have however been asked to write about divorce matters earlier this week. I have thought that the internet is already flooded with information and advice on this particular field of work which is done by most of the legal practitioners in my area. So- I reckoned- what difference shall it make if I am to write a blog post about this?
Well- I have been told by this interested member of the public- a lot of the information out there is written by lawyers for lawyers and is not easy enough to understand.
So- what if I wrote an article that enabled you to get your own divorce matter started and that pointed out to you what you are to be prepared for?
That is exactly what I intend to do with today's post!
1. When and why you should get divorced
Morality and religion aside- it may not always seem like it, but our law does not allow for people to get divorced just because they feel like it. This may be a shock to some, but even two people who have agreed to get divorced can get sent back home by the Court to go and sort out their marital problems before they get divorced. Why would this happen?
It is because the Court can only divorce a married couple for one or more of the following reasons:
 |
| as taken from the Divorce Act 70 of 1979 as amended. |
The reasons in part (b) needs very little elaboration, but it is usually the reason in part (a) above that gets presented to Court and get motivated in a wide variety of ways.
What are problems to work through for some are for others reasons why a marriage can no longer be.
I am not going to try to limit the definition of "irretrievable breakdown", but will point out that the clearest indications that require the least elaboration on- if any- are the following:
1. Living apart for more than a year;
2. One of the parties having committed adultery while the other party does not want to be in an open marriage at all.
3. One of the parties having been declared a habitual criminal by the Court and not getting out of prison anytime soon.
There are other indications as well. Whatever you may think are signs that your marriage has broken down beyond all hope of repair shall accepted by the Court as a reason to get divorced as long as the Court does not believe that it is a problem that can be solved by counselling, talking things over or just taking some time to think it over.
2. How to get started
Divorce courts are accessible to the public without the need for a legal representative. If you want to get divorced without an attorney you can start proceedings 100% on your own. If you do so the only person that you will need to pay shall be the Sheriff. This is why...
Your Regional Court has a Registrar that can be approached during business hours. If they hear that you want to get divorced they will give you a form to fill out. Thus form is actually your summons. Personally- I don't like those summonses because I know I can draft much better summonses myself, but they are still good enough to get your divorce matter going.
The minimum amount of information that you need to fill in is the following:
1. The names and addresses of yourself and your spouse;
2. If you have children- their names. You shall in this case need to attach copies of their birth certificates;
3. Where and when you got married. Your marriage certificate needs to be on hand in court and a copy thereof needs to be attached to the summons.
4. Whether you are married in- or out of community of property. If you are married out of community of property you shall need to attach a copy of your antenuptual contract. If you don't have one you can obtain a copy from the Deeds Registry where the contract got registered. It does not cost that much.
5. Why you deem the marriage have irretrievably broken down.
6. Where the minor children shall live and how the parent who does not have the children living with him or her shall maintain contact with them.
If the above is all that you wish to fill in you can get divorced without an attorney.
If you do wish to claim maintenance either for yourself or your children from the other party- you will really want to appoint an attorney to help you. In most cases the other party can accept the fact that he is getting divorced and go along with it. The moment they hear that their money is being threatened, however, they rush to find the nearest attorney. Well- not all of the defendants do that. Some will go for the most expensive attorney or the one with the best reputation...
If the Defendant (that is the other party- the one that you are suing for divorce) does not do any of the above he/ she most likely does not have much money to worry about in the first place and you may wish to reconsider your own claims- at least with regard to the amounts that you are claiming...
With the summons having been filled out/ drawn up the Registrar then has to issue it with a case number. It may take couple of days. It it is not done within a week, though, you shall have to get help because summonses that are not issued within a week have a high likelihood of having gone missing (here in Mbombela).
If you do receive your summons with its case number you then have to hand it to the Sheriff in the area where the defendant lives. The Sheriff delivers the summons to the Defendant in person and then gives you a report stating when a copy of the summons was delivered to the Defendant.
The Court Rules provide for someone who receives a summons to give notice within two weeks that he/ she opposes any aspect of the divorce (like the amount of maintenance being claimed).
This is why you can only ask for your court date after two weeks from when the summons got served on the Defendant.
If the Defendant does enter appearance to defend you should rather get an attorney, because it is even possible for him/ her to get a court date without you knowing if he/she knows the court rules or is assisted by somebody who does. A Defendant who does this can even then go finalise the divorce without you knowing.
And this is how a divorce matter gets started.
Finishing one is another story altogether...
All that I will say is that you can easily get divorced in a month or two if you don't want any money from the Defendant. If you do claim money, though, you can expect the matter to drag on for years unless you have an attorney who know how to manage an opposed divorce.
I hope that this post is useful to someone out there and that he/ she shall be able to find his/ her way to getting the divorce action started. If any help is needed in finalising the matter you know who to call...
