When people are thinking about separating from their Spouse, most people are unsure of what type of Divorce they need to have.
A Divorce action may be opposed or unopposed.
An opposed Divorce is proceedings which are acrimonious and are defended by the respective Spouse as they may have a claim of their own; i.e. even if they agree to the divorce they might disagree with the division of assets, or maybe contend the parenting plan, etc. This is where the Parties will state and prove both their respective claims to the Court and the Judge or Magistrate (if you are in Regional Court) will weigh up the evidence and make a ruling, based on a balance of probabilities.
This is a lengthy process and may continue over a period of in excess of a year or maybe even two. This therefore becomes a very costly situation.
An unopposed Divorce is not as complicated; there are two procedures which may happen. Firstly unlikely (but not impossible) procedure is that you serve your Summons upon your Spouse and the Defendant (your Spouse) fails to enter a defence). You will then proceed with an unopposed date due to your Spouse being in default. (in other terms this will also be known as a default Judgement). The second more commonly used process is an unopposed Divorce by way of a Settlement Agreement.
A lot of cases which we are receiving, people understand that they are wanting to get divorced however fail to understand the variable and invariable consequences which occur in both a marriage and a Divorce. This is a subject by itself which is explained in the consultation.
A Settlement agreement is a binding agreement in writing wherein you and your Spouse deal with all the issues pertaining to your marriage and the dissolution thereof. This will include your Children’s Primary Residence, Contact, maintenance as well as the Proprietary aspects of the Divorce.
PROCEDURE OF AN UNOPPOSED DIVORCE:
– How Martin Vermaak Attorneys deal with Unopposed Divorces is simple:
- Prior to initial consultation: usually the Client (being yourself) will contact the firm and make an appointment for a one-hour consultation. After this you will receive an email relating to the consultation and what you would need to bring for our Offices.
- Initial Consultation: in the Consultation you will discuss a short background of yourself as well as your Spouse prior to your marriage up until you decided to become divorced. You will then discuss the Minor Children (if you have any) as well as what agreement you and your Spouse have arranged; or upon what terms you are both willing to part ways. Please note Martin Vermaak Attorneys are not mediators and therefore when you come for the consultation please ensure you have a note of exactly what you and your Spouse want in terms of the proprietary aspects of the marriage.
- First Step to the unopposed Divorce: our Offices will now draft the Settlement agreement as per your instructions. Once we are completed with taking your instructions and drafting same into the corrected format and ensuring that all formalities are correct, we will send same to you for approval.
- After receiving your approval: both Parties will initial and sign the Settlement agreement together with two witnesses. Then the Settlement agreement is sent to our Offices.
- Drafting of Summons: a Summons in a divorce matter will be a Combined Summons. This is a document informing the Sheriff to Serve the Summons on a Defendant (your Spouse) personally. The attachment will be a Particulars of Claim which states your Claim and the reasons for why you are divorcing; your relief sought will also be stated in the Particulars which will ask for the Settlement Agreement being made an Order of Court. Settlement Agreements will be attached as an Annexure to the Particulars of Claim in order to show the Judge/Magistrate what terms the Parties are both intending to settle on
- After Service: once your Spouse have been served you will have to wait the prescribed time before applying for the unopposed hearing date (this is 10 Court days)
- Family Advocate endorsement: Only in the event that minor Children are involved, we will take the Settlement Agreement and the Summons to the Family Advocate’s Offices to have the Settlement Agreement endorsed by them as being in the best interest of the Minor Child. Should any queries arise our job is rectify these and send same to them for assessment.
- Applying for the unopposed hearing date: once we have applied for the date our Offices then prepare an index and paginated bundle as well as a practise note for the Court and we file same.
- At your Hearing: almost every person who is going through this process is by now anxious as well as excited and sometimes very emotional
This matter will take approximately 5 – 15 minutes[MS1] of your time, however, due to the amount of cases in the Court and the long lists of the amount of cases per Court, you might have to wait up to lunch before being heard; on rare occasions it might be only heard after 14h00.
In these cases, the Attorney will call you to the Witness stand whereby you will then take the prescribed Oath:
Court will ask you these questions –
– State your full names for the record
- Do you object taking the prescribed Oath?
- Do you take the Prescribed Oath to be binding on your conscience?
- Do you confirm that you will be telling the truth the whole truth and nothing but the truth?
- Please raise your Right Hand and state “so help me God”.
Once you have been sworn in, your Attorney will then proceed with the Examination in Chief (this is the line of questioning which you will be asked) and is generally the following:
- Are you the Plaintiff in this matter?
- Can you confirm that the Defendant is
- Can you confirm your residential address?
- How long have you been residing there?
- Do you consider (Address) to be your permanent residence?
- You were married (Area you got married in) (marital regime) on (date) , is that correct?
- Can you confirm that this is your original Marriage Certificate being shown to you?
- Can you please read out your ID number and that of the Defendant?
- Please may this be marked as exhibit A?
- Can you confirm that this is your ANC being shown to you?
- There are (quantity) minor children born of this marriage, is that correct?
- Can you confirm the dates of birth of the Children?
- With whom will the children reside?
- What will happen to the children during the day?
- Is that in the best interests of the children?
- In your POC, you have stated that the marriage has irretrievably broken down, is that correct?
- Please give the reasons for the breakdown of your marriage?
- Have you tried to save your marriage?
- Do you think there is a prospect of reconciliation?
- Is it true, that you and the Defendant have reached a Settlement Agreement in terms of the Minor Children and the proprietary aspects of your estates?
- Please look at every page and confirm that those are the signatures of yourself and the Defendant?
- Please may this be marked as exhibit B/C?
- The parties have agreed that it is in the best interests of the minor children that the minor children will reside with the Plaintiff /Defendant, and that the Plaintiff or Defendant will have reasonable contact with the Plaintiff/Defendant.
- Do you confirm that neither you nor your husband has asked for Spousal Maintenance?
- Do you understand that you now forfeit the right to request such maintenance?
- I respectfully submit that there is nothing contentious in the Settlement Agreement.
- The Settlement Agreement has been duly endorsed by the Family Advocate.
The Attorney will then beg leave to have the Settlement Agreement made an Order of Court and the Parties marriage dissolved.
Please note that the questions are guidelines and the Judge/Magistrate is subject to ask their own questions.
When you have finished, and the Judge/Magistrate has confirmed a Decree of Divorce you will then be excused.
Our Offices will send our Messenger approximately 10 to 15 Court days to collect your Decree of Divorce as the Courts have a procedure before you can get the Order.
[MS1]Explain that the waiting time at court may take long. We don’t what Client’s to think that the entire then will only take a few minutes