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Uncontested Divorce
Divorce is
one of the most distressing situations in a couple’s lives, and the
decision to split and divide a household, assets, and the accumulation
of stuff is also one of the most difficult parts of the divorce
process.
Apart from
division of assets, there is also custody of any children in this
equation, all of it stressful to say the least. If the
divorce is to be contested that adds further to the stress and
unhappiness for both parties and any children of the marriage.
One option to alleviate the stressfulness of the situation is to look
at an uncontested divorce, apart from lessening the stress it will also
prove less expensive in the long run.
The key to this is for the couple to sit down and calmly work out the
details, looking at their assets such as property, money and money
matters, and not forgetting the most important child/children custody.
Choosing an uncontested divorce you many be able to avoid having to
hire the service of legal counsel.
There are two avenue to consider when deciding on an uncontested
divorce, to file for divorce on your own or to hire a Divorce Lawyer or
Divorce Attorney to attend to the matter.
Should you decide to retain the services of a Divorce lawyer or
Divorce attorney then you
can leave all the technical details for the lawyer or
attorney to deal with.
However if you decide to file for an uncontested divorce yourself, then
you need to know and understand what needs to be done.
Firstly you need to understand that civil marriages and marriages that
are conducted according to African customs will only be dissolved by
the courts. When dealing with Hindu and Muslim marriages,
these will be governed by their respective religions.
In most cases divorces are granted in a Divorce Court or in the High
Court, you will find the divorce court situated at the magistrates
court and getting an uncontested divorce is available there.
Legal representation is available at both High Court and the Divorce
Court, but at the Divorce Court you are able to represent yourself,
which means you can save a lot of money in legal fees.
One of the first things that needs to be done is one of the parties
need to draw up a summons to inform the other party of their intentions
to dissolve the marriage, this gives the other party the right to
contest or defend the divorce.
Attached to this summons, is a document called “Particulars of Claim”,
this will explain the reasons for the requesting a divorce and that
must be stated clearly on the form, reasons for a divorce in terms
South African divorce law are irretrievable
breakdown of the marriage, this
can include
one party having left the other, or mental illness, proof of such must
be supported, or if one party is in a coma.
The summons will then be issued by the Registrar of the court (he will
use an official stamp), and the summons will be issued to the other
party. The other party will then have ten day to inform the
court (or their attorney will do this), that they intend to defend the
divorce, if the other party does not send notification of
defense, then the case will be added to the ‘unopposed divorce roll’
(uncontested divorce) and a date for hearing the divorce will
be set.
For an uncontested divorce the parties must draw up a settlement
agreement that states in relation to the child/children:
- Who
will have custody of the child/children
- How
often the non-custodial parent will be able to see the
children
- All
issues pertaining to maintenance must be dealt with
When the
divorce is decreed by the court, and the parties have
signed a settlement agreement, this agreement will
become a divorce order. Should either of the parties fail to
adhere to this agreement then they are breaking the law.
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