The divorce process is often not properly understood by those who are about to go through it. We provide some clarity.
As with anything, a bit of research and an understanding of what you are about to get involved in will make the process easier to handle. This is in no way suggesting that understanding the divorce process will make it easy to cope with – it’s an incredibly stressful event – but preparing for what you are about to enter into can help. We provide an overview of the major steps involved in a divorce proceeding.
Step 1: Divorce summons
The first document that is issued by the court, on behalf of the party introducing the divorce action (called the plaintiff), is the divorce summons. This document contains details of the parties concerned: when they were married, the reasons for the divorce, and what the plaintiff wants to get out of the divorce – i.e. redistribution of assets, maintenance payments, where the children will live, as well as the rights of contact with the children.
Step 2: The plea and the counterclaim
The party receiving the summons, which is served by the sheriff, is called the defendant. After a period of a time described in the rules of court, the defendant delivers their response to the statements made in the summons. This is called a plea. The plea is coupled with a document called a counterclaim, the content of which is similar to that contained in the plaintiff’s summons.
Step 3: Plaintiff’s plea to defendant’s counterclaim
After a further period of time, the plaintiff then delivers their response to the counterclaim, which is called the plaintiff’s plea to the defendant’s counterclaim.
Usually this is the end of the documentation delivered between the parties. Collectively, this documentation is called the pleadings. There are occasions when further pleadings may be delivered by each of the parties, but the above documents are usually the only ones delivered as the pleadings in the matter.
Step 4: Application for trial date
The plaintiff then makes an application for a trial date, which will be allocated for a future time. The time for a trial date is dependent on the region in which the parties reside. This can vary from a few months to approximately fourteen months.
Usually, if a divorce process is instituted in the High Court, the duration from start to finish is in the region of 15 to 18 months. However, the divorce process is now also dealt with in the lower court (regional Magistrate’s Court), and the duration from start to finish will be shorter as some of the time periods are different and the Regional Magistrate’s Court doesn’t, at this stage, have the same backlog of trials as the High Court.
Step 5: Discovery process
During the period between close of pleadings and waiting for a trial date, there is a process called discovery. This is when each of the parties asks the other party to deliver the documentation they are going to be using at trial. South Africa’s system of law does not allow anyone, without the judge’s consent, to bring a “surprise document” to trial. Every document utilised at trial needs to be “discovered” – given to the other party before the trial commences. It is during this discovery process that most of the documents that have been hidden up until that point in time are usually found, as there are processes that can require specific documents to be brought to court. This documentation may include bank statements, shareholdings in the stock exchange, credit card statements, etc.
It often happens that one party, who was previously completely unaware of their spouse’s financial position, suddenly learns of it during the discovery process. This is because at that stage their attorney will require these documents in terms of the rules of court. The attorney may issue a subpoena to the relevant institutions to deliver the documents. It can be an expensive process, so here’s a tip for anyone who has not had their finger on the pulse of their spouse’s estate throughout the marriage (which is often the case): do a thorough investigation of their estate before the divorce even begins. At the commencement of the divorce it often happens that every document that is relevant “disappears” out of the house, and it then becomes a tricky task to follow the paper trail. It’s not uncommon for a party to be advised by their attorney to immediately copy each and every document that evidences any value in their spouse’s estate (such as the documents mentioned in the paragraph above). Always remember that retirement annuities, pensions and certain other policies do fall into the estate, and a percentage of these policies can be claimed by the other party.
Step 6: Finalising the divorce
During the process of the pleadings and prior to trial, the matter might be settled. At this point in time, an agreement of settlement is drawn up by either the attorney or the parties themselves, if they are able to do so. The agreement is signed by the parties and then settles the divorce process. This situation would occur if mediation has worked for the parties (see below) or they have decided to settle their issues; the matter can then be resolved by signing the settlement agreement and obtaining a final order of divorce without the necessity of going to trial.
If an agreement isn’t signed during the pleadings or after mediation, a trial would be held, during which time evidence is presented by both parties and the court makes a decision on how the matter should be resolved. Usually an agreement of settlement is then entered into at court and signed by the parties, and a final order of divorce is granted.
When the matter becomes settled in this way, it can be set down for hearing on what is called the “the unopposed divorce roll”. This means that the plaintiff goes to court before a trial is held and a final order of divorce is granted without the necessity of a trial. This is the recommended process for parties to follow as it save costs. It also causes less emotional damage to the children, who are always part of the process and are unfortunately sometimes required – by the plaintiff or the defendant, and often both – to take sides.
An alternative option: mediation
It’s becoming more and more common for parties to enter into a mediation process, either before or during the divorce process. There are very good reasons for divorces to be resolved through mediation. The same principles apply in the mediation as they do in the divorce – i.e. you need to be aware of the assets and their respective value in your spouse’s estate, as it is a pointless endeavour to enter into mediation without full knowledge and transparency.
David G Sonderup is a practising divorce lawyer with 30 years of experience covering every aspect of family law. David has recently launched the online divorce course – an anonymous four-hour course that will ensure you understand the divorce process. http://divorce-bootcamp.kwiksta.com