Can My Spouse Refuse to Get Divorced?
We often get asked this question: “I want to get a divorce, but my spouse says, he/she will never allow it. What can I do?” Here is the answer:
A Spouse Can’t Refuse to get Divorced
It is your right to get a divorce. You can’t be forced into staying in a marriage if you do not want to be in the marriage anymore. It is up to a court of law to decide whether or not there are grounds for a divorce. In South Africa, the irretrievable breakdown of the marriage, constitutes a ground for divorce.
Irretrievable Break Down of The Marriage
If the court believes that the marriage relationship has broken down to such an extent that there is no reasonable prospect of the restoration of the marriage relationship, the court will grant a decree of divorce on the ground of irretrievable breakdown of the marriage.
Certain circumstances which the court may accept as evidence of the irretrievable breakdown of the marriage relationship, in terms of the Divorce Act 70 of 1979, are as follows:
- The parties have not lived together as husband and wife for a continued period of at least one year prior to the date of issuing summons for divorce.
- The defendant has committed adultery and the plaintiff finds it irreconcilable with a continued marriage relationship.
- The defendant has been declared a habitual criminal and is undergoing imprisonment.
There are various other grounds which the court may consider in determining whether the marriage has irretrievably broken down or not. It does however remain the discretion of the court whether to grant a divorce order or not. The court must be satisfied that the marriage relationship has in fact broken down and that there is no possibility of the continuation of a normal marriage relationship. A divorce attorney will be able to advise you on whether your circumstances will qualify as a ground for the irretrievable breakdown of the marriage, before proceeding with your divorce.
The Process of Divorce
The process of divorce must be followed by law. Your divorce attorney will ensure that you comply with the formalities and that the proper procedures are followed. The procedure for divorce is as follows:
- A summons is issued and must be served on the Defendant personally by the Sheriff in the area of jurisdiction of the court.
- The process will then depend on whether the divorce is contested or uncontested.
Contested Divorce/Opposed Divorce
A divorce is contested when the parties cannot reach agreement regarding:
- The division of assets,
- The primary care (custody) of the minor children, and
- The amount of maintenance for the children and/or spouse.
A contested divorce process includes the following steps:
- Filing of pleadings. This includes summons, plea and/or counter claim, which is necessary to set out the parties’ respective claims against one another, as well as their defences.
- Once the various claims and defences have been expressed and dealt with, a trial date will be applied for and the matter will be set down for trial.
- The parties will then be required to make all documentation related to their claims and/or defences available to each other by way of Discovery.
- A pre-trial conference will then take place in order to limit the issues in dispute between the parties, which will in turn limit the issues to be dealt with at the trial.
- The parties will then attend court for the trial, where they will be expected to present their evidence to the court in order for the judge or magistrate make a decision regarding the issues in dispute.
- The judge or magistrate will then render a judgement.
Various experts may be engaged where necessary too, which may include:
- Child-care Experts – To determine who will be the primary parent that the children will live with.
- Forensic Accountants – To determine each party’s assets.
- Industrial Psychologists – To determine the spouses ability to be employed for maintenance purposes.
- Actuaries – To determine the amount and duration of maintenance for the children and/or spouse.
A contested divorce may take anywhere from a few months to a few years to conclude. A contested divorce is more costly than an uncontested divorce as it depends on the time spent on the matter and the conduct of both parties.
Uncontested/Unopposed Divorce
In an uncontested divorce, both parties co-operate with one another to agree on the terms of the divorce. In this situation, both parties will usually consult with one attorney, in order to streamline the divorce process. Alternatively, each party will have their own attorney and the attorneys will negotiate the terms of the divorce. In both cases, a dead of settlement will be drafted setting out the agreement between the parties.
The party that institutes divorce proceedings, known as the Plaintiff, will be the only party required to appear in court on the date of the hearing. By the time the matter gets to court, the parties would have signed the settlement agreement, which will include:
- How assets will be divided,
- If there are children involved, which parent will have primary care over the children and visitation arrangements, and
- How much maintenance must be paid.
An uncontested divorce can be finalised within 2 to 6 weeks.
For more information on this, please see The Divorce Process.
Choosing the Right Divorce Attorney
It is important to choose the right attorney to represent you in your divorce. People are of the mistaken belief that any attorney can provide competent legal representation in a divorce matter. An attorney specialising in divorce and family related matters is usually up to date with the law in relation to divorce and deals with issues relating to divorce and family law on a daily basis. Consequently, an attorney specialising in divorce will deal with a divorce matter more efficiently than an attorney that does not specialise in divorce.
Van Heerdens Attorneys have been successfully involved in many uncontested and contested divorce matters. Book a consultation here or give us a call so that we can give you the legal advice that you need in order to make an informed decision.
Conclusion
It is important to choose the right attorney to represent you in your divorce. People are of the mistaken belief that any attorney can provide competent legal representation in a divorce matter. An attorney specialising in divorce and family related matters is usually up to date with the law in relation to divorce and deals with issues relating to divorce and family law on a daily basis. Consequently, an attorney specialising in divorce will deal with a divorce matter more efficiently than an attorney that does not specialise in divorce.
Van Heerdens Attorneys have been successfully involved in many uncontested and contested divorce matters. Book a consultation here or give us a call so that we can give you the legal advice that you need in order to make an informed decision.
