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Unopposed Divorces

An unopposed divorce is also known as an uncontested divorce.

A divorce is unopposed where the spouses agree to all the material terms of the divorce. That means that nothing is in dispute about the division of their assets, spousal maintenance, primary residence, contact to the minor children and child maintenance.

A divorce will not be unopposed if any material terms are not agreed to. That means that if spouses agreed to all the terms of the divorce, except for one thing, say if one spouse will pay spousal maintenance, then the divorce is opposed.

Unopposed Divorces are an economical way to part ways with your spouse. If possible, mediate an agreement with your spouse as a settlement agreement cost way less than an opposed divorce.

Is an unopposed always better than an opposed divorce?

The answer is No! If your spouse is a little bit too keen to settle the matter, it is crucial to ensure that you have all the relevant information to make an informed decision.

I do not usually recommend that Parties settle their divorce if I do not have all the facts. If a spouse owns a business or several businesses, and I act for the other spouse, then I need to establish the actual values of that business.

Do all opposed divorces end up in the divorce court?

Most divorces are settled before the trial date. To get a divorce to go to trial is an exception to the rule. However, most opposed divorces are settled soon after it becomes opposed, during the period that we wait for the trial or on the court’s steps, on the day of trial.

What happens if one spouse refuses to divorce?

If a spouse refuses to get a divorce and refuse to have anything to do with the divorce, the divorce may proceed as a default judgement divorce.

However, the spouse who does not want to get divorced may file a plea that the marriage relationship did not break down irretrievably.

This means that the divorce is opposed.

However, the divorce order will be granted if the other spouse can convince the court that the marriage has broken down irretrievably.

How long does an unopposed divorce take?

If the divorce is unopposed from the start, and after the settlement agreement is signed, the Sheriff of the Court must serve the court papers on the spouse, known as the Defendant. From the time that the summons is served until the court date takes four to six weeks, depending on the court where the summons are issued.

Who pays the legal fees for an unopposed divorce?

Because of the uncontested nature of the matter, the parties agree on who will pay for the divorce in advance, and the payment term is generally reflected in the settlement agreement.

What is your divorce attorney’s role in an unopposed divorce?

If you and your spouse have already agreed to all the terms of the divorce, then the divorce attorney can act for both spouses. The difficulty is that one spouse will ordinarily approach the divorce attorney to obtain legal advice, causing the attorney to act for that person first.

Should the divorce become opposed, the attorney must be careful not to have a conflict of interest.

It is essential to know that when you instruct an attorney to assist with an unopposed divorce, they will assist you with the procedures and draft the summons and the settlement agreement.

They will not investigate to ensure that you get what you may be entitled to in terms of your matrimonial regime.

It happens that people agree to terms that only benefits one of the parties.

The Family Advocate’s role in unopposed divorces

Suppose minor children born from the marriage relationship or legally adopted children are involved, and the parties sign a settlement agreement. In that case, we must supply the settlement agreement to the Family Advocate’s office for an endorsement.

If they refuse to endorse the settlement agreement, then evidence must be presented to the relevant Regional Court or High Court to persuade the Magistrate or the Judge that what you agreed to is in the best interest of the minor children.

How much does an unopposed divorce cost?

As on average, an unopposed divorce will cost you between R10 000 and R20 000.00. You can also do a DIY divorce at a much lower cost.

It is recommended that you only proceed with an unopposed divorce if you know what you are entitled to.

We often have clients who try and ‘fix’ something contained in a divorce settlement agreement that was made an order of the court. It is not easy to “fix” issues post-divorce.

Unopposed Divorce Procedures

If the matter is unopposed from the start, we will supply the settlement agreement, combined summons, and particulars of claim to the court to get a case number.

After that, we will take the above documents to the Sheriff of the Court for service on the spouse. Personal service must take place.

Once the summons is served, we wait for the dies to expire.  This is the time that the spouse has to defend the matter in terms of the summons.

An index is prepared and placed on the court file.

If you have minor children, the documents will then go to the Office of the Family Advocate for endorsement, whereafter an application for a court date is made.

What to expect at court on the day of your unopposed divorce:

The court where the divorce will take place may differ from jurisdiction to jurisdiction.

In the Regional Court, you will be expected to appear in court on the day of the hearing.

Be dressed appropriately for the hearing.  Even though there is no specified dress code for clients, we suggest a suit for men and not revealing outfits for women.

Different Magistrates may work differently; some will call the matters as it is specified on the court roll for the day; other Magistrates will start with the most senior legal practitioner (attorney or advocate).

It is essential to be at court on time – ensure that you are not late for the hearing and give yourself some time to discuss the matter with your attorney before the matter gets called.

You may wait a few hours for your matter to be called, but once your matter is called, it generally takes less than 5 minutes to be finalised.

How to address the Magistrate?

The Magistrate is addressed as your Worship (and a male Judge as my Lord, whilst a female Judge is known as my Lady).

What questions will be asked when you testify at your unopposed divorce hearing:

The first thing that will happen when your case is called is that you will be sworn in.

After that, your divorce attorney will ask you something like:

  • That you are the Plaintiff in the matter.
  • What is your permanent place of residence is?
  • Confirmation that your address is within the court’s jurisdiction.
  • The details of your spouse (the Defendant) and confirmation that the details accord with the court papers.
  • Details of your marital regime and that the marriage relationship still exists.
  • We will show your marriage certificate to you, and you must identify the document and confirm that the details on the marriage certificate are correct.
  • You will then be asked for the reasons why you stated that the marriage relationship irretrievably broke down.
  • You will be asked if there is any possibility that you can save the marriage relationship.
  • If minor children are involved, the court of attorney will ask questions about their best interest, where they will stay and what contact the other parent will have.
  • You will be taken to the settlement agreement and asked to confirm that the settlement agreement is the one signed by you and your spouse. You will be asked to identify the signatures on this document.
  • The Magistrate will then grant a divorce order, incorporating the settlement agreement.

 

Different Courts, Different Procedures for Unopposed Divorces

If you get divorced in a High Court, the procedures are the same as above.  However, some High Courts do not require you to appear when you get divorced.

It is vital to be familiar with the practice directives of the different courts.

Your attorney or counsel then appears on your behalf.

Conclusion:

An unopposed divorce will have a material effect on your life. Whatever is contained in the settlement agreement will be made an order of the court.  It is final. Make sure that you understand your rights and obligations before you settle your matter.

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