Divorce can be a difficult and emotional experience, but understanding the legal process can help make it more manageable. In South Africa, divorce proceedings are governed by the Divorce Act of 1979, and there are two main types of divorces: unopposed (uncontested) and opposed (contested).
Unopposed Divorce
An unopposed divorce occurs when both spouses agree on all terms, including the division of assets, maintenance, and child custody. This is the simplest and fastest type of divorce.
Steps in an Unopposed Divorce
Drafting a Summons – The plaintiff (spouse initiating the divorce) drafts and files a divorce summons with the court.
Serving the Summons – The summons is delivered to the defendant (other spouse) by the sheriff of the court.
Agreement on Terms – If the defendant agrees to the divorce and all its terms, a settlement agreement is drafted and signed by both parties.
Court Hearing – A brief court appearance is required where the judge reviews the agreement and grants the divorce.
Final Decree of Divorce – The court issues a decree of divorce, officially ending the marriage.
Timeframe and Costs
Timeframe: Approximately 4 to 8 weeks.
Estimated Costs: If handled by an attorney, fees typically range between R7,000 and R15,000, depending on complexity. DIY divorces (where no attorney is involved) can be significantly cheaper.
Opposed Divorce
An opposed divorce occurs when spouses cannot agree on issues such as asset division, child custody, or maintenance. These cases take longer and require extensive legal proceedings.
Steps in an Opposed Divorce
Issuing and Serving the Summons – Similar to an unopposed divorce, the plaintiff files and serves a divorce summons.
Defendant’s Response – The defendant files a notice of opposition and a plea, outlining their disagreements.
Pre-Trial Procedures – This may include mediation, discovery (exchange of financial and other relevant information), and pre-trial conferences.
Trial Proceedings – If no settlement is reached, the case goes to trial where both parties present their arguments before a judge.
Judgment and Divorce Order – The court makes a ruling on all disputed matters and issues a decree of divorce.
Timeframe and Costs
Timeframe: Opposed divorces can take several months to years, depending on the complexity and court backlog.
Estimated Costs: Legal fees can range from R20,000 to R150,000 or more, depending on the length of the case and legal representation required.
The Role of the Family Advocate in Cases Involving Minor Children
When a divorce involves minor children, the Office of the Family Advocate plays a crucial role in ensuring their best interests are upheld. The Family Advocate is a government-appointed official who assists the court in determining issues related to custody (care) and access (contact) to children.
How the Family Advocate Process Works
Assessment of Parental Arrangements – If parents disagree on custody or visitation, the Family Advocate conducts an inquiry to assess the proposed arrangements.
Interviews and Investigations – The Family Advocate interviews both parents, the children (if of an appropriate age), and other relevant parties to determine what arrangement is in the child’s best interests.
Mediation and Recommendations – The Family Advocate may attempt to mediate between the parents to reach an agreement. If an agreement is not possible, they provide a written recommendation to the court.
Court Consideration – The court takes the Family Advocate’s report into account when making a final decision on custody and access rights.
Importance of the Family Advocate’s Role
Ensures that children’s rights and well-being are prioritized.
Helps parents come to an agreement without prolonged court battles.
Provides an expert opinion to assist the court in making a fair decision.
Conclusion
While an unopposed divorce is the quickest and most cost-effective option, an opposed divorce may be necessary if disputes cannot be resolved amicably. In cases involving minor children, the Family Advocate plays a vital role in ensuring their best interests are protected. Seeking legal advice can help ensure that your rights and interests are safeguarded throughout the process. If you are considering divorce, consulting an experienced family law attorney can provide guidance tailored to your specific situation.