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Process of Divorce

It should be understood that there are different kinds of divorce. What type of divorce you enter into will depend on your specific situation. Each type of divorce, as per divorce law South Africa, has a different process.

The spouse wishing to get divorced is referred to as the plaintiff. The spouse who is to be divorced from the plaintiff is referred to as the defendant. Being a defendant in a divorce case is not like being a defendant in a criminal case. It does not mean that you are the person who did something wrong or that you are in trouble.

Every divorce action starts with the plaintiff serving a summons on the defendant. The summons will state the particulars of the divorce case. Such particular will include the marital regime under which the couple was married. Any previous discussions or agreements that may state the division of assets and primary custody of any children should there be any. It will also state that the marriage has broken down and no reasonable reconciliation can be met. The summons will give the defendant a designated period of time in which he/she can defend.

It is the law, divorce law South Africa, to serve a summons on a spouse in person by the sheriff of the court. The only time an exception will be made is when a spouse is missing.

The process that follows will depend on various factors, such as how the defendant responds, if the defendant responds, if the plaintiff and defendant oppose certain areas of the divorce, if previous agreements have been made, and what is the cause of the breakdown of the marriage, to name just a few.

The most affordable and fast divorce is uncontested/unopposed divorce. Uncontested divorce, according to divorce law South Africa, is when a married couple previously agreed upon the terms of the divorce. Everything will have been discussed and agreed upon. The division of assets, debts, and the primary residence of any children should there be children involved. The couple agrees that the marriage has broken down and everything that led to the divorce will have been settled and arranged. Uncontested divorce can take up to 6 weeks to finalise and only the plaintiff will need to appear in court. it is simple, fast, and affordable.

Other kinds of divorce include contested divorce, which is the most expensive and time consuming divorce. There is also default divorce, which is a lot like uncontested divorce. The court will grant a divorce by default if the defendant does not respond. DIY divorce can be concluded without the assistance of an attorney, but you will have to maintain and handle all the dealings and administrations of the divorce. This divorce can be concluded in two ways. You can go to your local magistrate’s court and get the necessary documentations and some guidance as to the process, or utilise an online divorce service. Further, there is a mediation option. Mediation is when a third party works with both sides. The mediator is usually someone with a psychology background and cannot act in a legal capacity, but can only advise and guide the married couple on the best outcome for everyone involved, and ultimately, help the couple come to an agreement. Once an agreement has been drafted, the process can proceed and divorce can be granted. There are also round table meetings, which largely serve contested divorces. All these methods of divorce are legal and viable under divorce law South Africa.

There is a final option, called collaborative divorces. This option is not actively utilised in divorce law South Africa, but some family law firms are excited to see this option in practice in the conceivable future. Collaborative divorces are when each party of marriage has their divorce attorney present in the mediation process to assist and provide legal guidance throughout the mediation process. Divorce law can be very complex where contested divorce is concerned.

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