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Unopposed Divorces in South Africa lessens financial costs and emotional stress, enabling both parties to set aside any negative aspects that may hinder the process – allowing reasonable behaviour, amicable agreement and acceptance on the consequences of divorce.
Understanding the procedure and legal requirements can help ease the burden. In South Africa, the unopposed divorce procedure offers a smoother and less complicated path for couples seeking to end their marriage amicably. In this guide, we will outline the process and procedure of unopposed divorce in South Africa, providing you with the basic information to navigate this legal journey.
Unopposed divorce, also known as an uncontested or amicable divorce, occurs when both spouses agree to end their marriage and are willing to cooperate throughout the divorce proceedings. This type of divorce is typically less time-consuming, less expensive and less emotionally taxing compared to a defended/contested divorce, where couples cannot agree on various aspects of the consequences of the divorce.
Before you can approach the court for a divorce, you must be able to prove that the marriage relationship has irretrievably broken down and that there is no chance of reconciliation.
There are other grounds for divorce which are not relevant for the purposes of this article.
In order for the divorce action to proceed on an unopposed basis, the parties must reach agreement on the consequences of the divorce before proceedings are instituted.
Ideally, the parties should be able to discuss the matter and reach agreement on each aspect of the divorce but if they need assistance, they should approach a family law mediator to assist in reaching agreement on any issues in dispute.
The couple should prepare and sign a comprehensive settlement agreement which outlines the terms and conditions of their agreement regarding the rights and responsibilities of minor children, maintenance, division of assets and any other relevant matters.
The settlement agreement should be fair and reasonable to both parties and if minor children are involved, the provisions must be in the best interests of the children. A divorce settlement agreement should be prepared with the assistance of an attorney or a mediator.
To initiate the Unopposed Divorces in South Africa process, one spouse, referred to as the plaintiff, must complete and sign a summons which is then issued by the court. The summons will include details such as the names and addresses of both parties, the grounds for divorce and any claims related to maintenance, custody and/or the division of assets.
Once the summons has been issued, the plaintiff must ensure that it is served personally on the other spouse, known as the defendant. The summons can be served by a sheriff, a deputy sheriff, or any other person authorised by the court. Proper service ensures that the defendant is aware of the divorce proceedings and has the opportunity to respond.
The sheriff will then prepare a return of service which is sent to court together with the original summons. This serves as proof of service of the summons.
Even if the divorce is planned to proceed on an unopposed basis, the defendant still has the right/option of either defending (opposing) the divorce or he/she may choose not to respond within the stipulated time frame. If the defendant fails to respond, the plaintiff can proceed with the matter which will eventually be set down for hearing at court.
In divorce matters which involve minor children, the Office of the Family Advocate have to be notified of the divorce proceedings and will assess if an investigation is necessary.
Typically, if the settlement agreement makes adequate provision for the minor children, the Family Advocate’s offices will endorse the settlement agreement and return it to court.
If the Family Advocate is of the opinion that an investigation is necessary, they may hold an enquiry before reporting their findings to court.
Once the papers have been submitted to court, the court will issue the Plaintiff with a date for the hearing of the matter. The plaintiff will be required to attend court on the given date to give evidence to the court.
Provided that the court is satisfied with the papers and with the plaintiffs evidence, it will then grant a decree of divorce together with any other relevant relief sought.
After the hearing, the registrar of the court will prepare and sign duplicate court orders which the plaintiff and defendant will be entitled to collect. It is essential to keep a copy of the court order for future reference.
Embarking on Unopposed Divorces in South Africa requires cooperation, open communication and a clear understanding of the legal procedures involved. Although the procedure is not overly complicated, it is highly recommended that you seek legal advice from a qualified family law attorney to ensure that your rights and interests are protected and that there are no unexpected delays in the process.
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