Going through a divorce is never easy. It can be an incredibly emotional and stressful experience. Not only are you trying to cope with the breakdown of your relationship, you must also address incredibly important decisions and matters that will affect the rest of your life.

The process of divorce can be one of the most complex areas of family law. You will be forced to deal with sensitive issues related to child custody, child maintenance, or spousal maintenance. Emotions can escalate quickly, and you may not even have the opportunity to think about your situation logically.

With the help of a divorce attorney of Van Heerdens Attorneys, you can remain fully aware of your rights and options and have someone by your side who is fighting for your best interests and the best interests of your children.

We understand the difficulties you are facing and are about to face once you make your decision to get divorced. Whether your divorce is amicable or not, we possess the skills and experience necessary to guide you through it and assist you in managing the stress.

Get the help you need and do not pass the stress on to your family. Do not let feelings of guilt, shame, anger, or fear prevent you from seeking legal assistance. Divorce can be categorised as either contested/opposed or uncontested/unopposed.

Contested/Opposed Divorce

A divorce is contested when the parties cannot reach agreement regarding the division of assets, the primary care (custody) of the children, and the amount of maintenance for the children and/or spouse. In this case, the court will be requested to decide on how to deal with the issues in dispute at the trial. A contested divorce may take anywhere from a few months to a few years to conclude. The costs of contested divorces are variable, time based and dependent on the conduct of the parties. 

Uncontested/Unopposed Divorce

In an uncontested divorce, you and your spouse will co-operate with one another to agree on the terms of your divorce. In this situation, both parties will usually consult with one of our attorneys together in order to streamline the process.

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 will have agreed on how assets will be divided and, if there are children involved, which parent will have primary care over the children, how much maintenance must be paid and visitation arrangements.

An attorney at Van Heerdens Attorneys will draft a settlement agreement, which will be signed by both parties. An uncontested divorce is by far the quickest and least expensive way to get divorced. It goes without saying that, if possible, you should attempt to resolve your divorce in an uncontested manner. An uncontested divorce can be finalised within 2 to 6 weeks.

Grounds for Divorce

A marriage may be dissolved by a court on the following grounds:

  1. the irretrievable breakdown of the marriage; or
  2. the mental illness, or the continuous unconsciousness, of a party to the marriage.

Irretrievable Breakdown:

A court may grant a decree of divorce on the grounds of the irretrievable breakdown of the marriage if the court is satisfied that the marriage relationship has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marital relationship between them.

In terms of South African law, we have a ‘no fault’ system of divorce, which means that a divorce will be granted if one of the parties believe that there has been an irretrievable breakdown of the marriage relationship and that there are no reasonable prospects of the marriage being restored. A marriage can therefore be dissolved even if one of the parties does not want to get divorced.

Mental illness or continuous unconsciousness:

Mental Illness:

A court may grant a decree of divorce on the grounds of the mental illness of the defendant if the court is satisfied that the defendant:

  1. has been admitted as a patient to an institution in terms of the reception order;
  2. is being detained as a state patient at an institution or other place specified by the Minister of Correctional Services; or
  1. is being detained as a mentally ill convicted prisoner at an institution

Continuous Unconsciousness:

A court may grant a decree of divorce on the grounds that the defendant is, by reason of a physical disorder, in a state of continuous unconsciousness, if it is satisfied that:

  1. the defendant’s unconsciousness has lasted for a continuous period of at least six months immediately prior to the institution of the divorce action; and
  1. after having heard evidence from at least two medical practitioners, one of whom must be a neurologist or a neurosurgeon appointed by the court, there is no reasonable prospect that the defendant will regain consciousness.

The Divorce Process

As with any other action, divorce action is instituted by way of issuing summons. Summons must be served on the Defendant personally.

A court will have jurisdiction in a divorce action if one or both parties are:

  1. domiciled in the area of jurisdiction of the court on the date on which the action is instituted; or
  2. ordinarily resident in the area of jurisdiction of the court on the date on which the action is instituted and has/have been ordinarily resident in South Africa for a period of not less than one year immediately prior to that date.

If the divorce is contested, the various stages of the litigation process will ensue. This entails the following:

  1. pleadings (Summons, Plea and/or Counter Claim)
  2. application for trial date and set down of trial date
  3. discovery of documents
  4. pre-trial conference
  5. trial
  6. judgement

It may become necessary during the contested divorce process to engage the services of various experts, which may include:

  1. child-care experts, to determine which parent the children should live with;
  2. forensic accountants, to examine the couple’s assets;
  3. industrial psychologists, to determine a spouse’s employability for maintenance purposes; and
  4. actuaries, to determine the amount and duration of maintenance contributions to the children and/or the spouse.

Is a DO-IT-YOURSELF divorce right for you?

A person should be careful when considering a do-it-yourself divorce, especially where there are children involved, or where there are significant assets, retirement annuities or pension funds.  It is always advisable to seek the assistance of an experienced divorce and family law attorney or to involve an appropriately qualified third-party mediator, so that a detailed and proper settlement agreement or parenting plan can be drafted and agreed to. Fixing drafting errors or trying to resolve other issues after the divorce has been finalised can end up being a daunting experience for all concerned and will no doubt be a costly legal exercise.

A do-it-yourself divorce should NOT be considered if:

  1. Your divorce is or will possibly be contested;
  2. Your divorce could become complicated;
  3. You are not prepared to do all the admin and legwork yourself;
  4. There are substantial assets to divide; and/or
  5. There are or could be disputes regarding children.

If you have a matter which you would like to discuss, we would like to hear from you. Please contact us via telephone or email. Alternatively, please feel free to schedule an appointment.

Do you have a matter which you would like to discuss?

Emergency Contacts

Van Heerdens Attorneys (After Hours Bail Applications) 067 652 1472
SAPS 10111
Family Violence, Child Abuse, Sexual Violence 012 393 2363
Childline 0800 055 555
CRIME STOP 0860 010 111
Women Abuse 0800 150 150

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