Getting Divorced

What is a Contested divorce

Admin

2015-02-16

The contested divorce process consists of various stages:

  • pleadings
  • application for and set down of trial date
  • discovery of documents
  • further discovery and particulars
  • pre-trial conference
  • trial
  • judgment

Pleadings

The formal documents in a divorce are referred to as pleadings. Typically, the pleadings in a divorce will consist of the following documents:
summons, particulars of claim and notice of defence

  • plea
  • counterclaim
  • plea to counterclaim and further pleadings

Only those facts that are necessary to support a cause of action or to disclose a proper defence should be pleaded in the pleadings. One often finds unnecessary detail and/or facts in the pleadings.

The pleadings narrow the disputes and provide guidance to the court on the evidence that is to be led. Pleadings must conform to the following criteria:
Each pleading must be signed by the party or his/her legal practitioner.

Pleadings must be divided into paragraphs that are consecutively numbered and contain distinct averments (affirmations or allegations).
Every pleading must contain a statement of all the material facts relied upon with sufficient particularity to enable the other party to respond thereto.
Every pleading in which a party claims patrimonial relief other than that which the party would ordinarily be entitled to as a natural consequence of the divorce, must contain details of the grounds on which such relief is claimed.

Summons

A divorce is usually started by way of a summons. The divorce action is deemed to have been instituted on the date the summons was issued. Unless there is a settlement between the parties, the summons culminates in a trial and the delivery of a judgment. The trial involves the leading of evidence by both the plaintiff and the defendant.

The summons informs the defendant that if he/she disputes the plaintiff's claim and wishes to defend the action, he/she must serve a notice of appearance to defend the claim on the plaintiff or his/her attorney within 10 days (where the parties live in the same jurisdiction) or 21 days (where the parties live in different provinces) after the date of service of the summons upon him/her. The summons also warns the defendant of the consequences if he/she fails to do so, i.e. it may be possible to obtain judgment by default against him/her.

A summons must comply with certain formalities and must state:

  • the sex, occupation (if known) and address of the defendant;
  • the sex, occupation and postal and residential addresses of the plaintiff; and
  • the full address where the plaintiff will accept service of documents.

Before the summons can be issued, it must be endorsed with the following particulars of claim:

  • The grounds on which it is stated that the court has jurisdiction in terms of the Divorce Act 70 of 1979.
  • If a marriage subsists between the plaintiff and the defendant:
    • the place and date of the marriage, as well as the matrimonial property system;
    • the names, ages and sex of any minor children of the marriage;
    • the name and address of the person in whose care the minor children are; and
    • the nature and grounds of each claim and alternative claim.

    The summons must be signed by the plaintiff or his/her legal practitioner and must state the address of the person who has so signed. A summons and other pleadings may be amended at any time before judgment. The divorce summons is served personally on the defendant by the sheriff of the court. A return of service must be produced by the sheriff stating:

    • that the service has been duly effected and provide the date thereof; or
    • that he/she has been unable to effect service and provide the reason for such inability.
  • In a divorce by default, i.e. where the defendant does not defend, a court must be satisfied that the summons was served personally.

    Once the summons is served on the defendant, the defendant may, within the period stated in the summons, defend the action (i.e. contest the divorce) by delivering to the registrar and serving upon the plaintiff, at the address nominated by the plaintiff in the summons, a notice in writing that he/she intends to defend. The notice must be signed by the defendant or his/her attorney and must state the full address where the defendant will accept service of further pleadings and notices in the action.

    If a divorce summons is not served within 12 months of the date of its issue or, having been served, the plaintiff has not, within 12 months after the date of such service, taken further steps to proceed, the summons will lapse.

    Plea

    After serving a notice of defence, the defendant must, within 20 court days, deliver a plea. The plea must be dated and signed by the defendant or his/her legal representative. In the plea, the defendant must either admit/deny/confess/avoid all the material facts alleged in the particulars of claim, and must clearly state the nature and the grounds of his/her defence, including any exception that he/she may have to the summons.

    The defendant should deliver his/her plea timeously. Essentially, the plea contains the basis of the defendant's defence, and the defendant may admit, deny, confess or avoid the allegations made in the summons and particulars of claim.

    When a defendant fails to deliver a plea, the plaintiff may deliver a notice in writing calling upon the defendant to deliver a plea within 5 court days of the service of the notice (referred to as a ‘notice of bar') and warning the defendant that his/her failure to do so will result in the case being set down without further notice. Furthermore, judgment may be given against the defendant in his/her absence.

    Counterclaim

    The defendant may deliver a counterclaim or claim in reconvention, setting out any counterclaim that he/she may have.

    Plea to counterclaim and further pleadings

    If the plaintiff intends to defend the claim in reconvention, he/she must deliver a plea to the counterclaim within 10 court days of delivery of the counterclaim. Once that is done, the pleadings are closed.

    Application for and set down of trial date

    The plaintiff then makes an application for a trial date, which the registrar will set down (allocate). If the plaintiff does not apply for a trial date within the prescribed number of days after the pleadings have been closed, the defendant may do so.

    Usually, if a divorce is instituted in the High Court, the duration from start to finish can be up to three years. In the regional magistrate's court, the duration from start to finish will be shorter as the lower courts do not have the same trial backlog as the High Court.

    Discovery of documents

    In the period between close of pleadings and waiting for a trial date, there is a process called discovery, during which each party demands to see the documentation and other material like tape recordings the other party intends to use at trial. Our law does not allow documents to be brought to trial without the judge or magistrate's consent. Each and every document that a party will use at trial must be ‘discovered', i.e. the other party must be given an opportunity to read the document before the trial commences. The documentation may include bank statements, shareholdings in companies, credit card statements, bond accounts and tax returns. It is usually during the discovery process that most of the hidden documents are found, as there are processes that can require specific documents to be brought forward.

    An attorney may issue subpoenas to relevant financial institutions to deliver documents the other party failed to deliver. It often happens that at the commencement of the divorce, all the relevant documents disappear out of the house and the difficult task of following the paper trail begins. Often an attorney will advise a client to immediately make copies of all the relevant documentation that will be used later as evidence to prove the value of their spouse's estate.

    During this process, the following must be complied with:

    • After the close of pleadings either party may deliver a notice to the other calling on him/her to deliver a schedule (list) specifying the books and documents in his/her possession or under his/her control that relate to the action (case) and that he/she intends to use in the action or that tend to prove or disprove either party's case. The schedule, verified by affidavit, must be delivered by the party required to do so within a specified period of time stated in the court rules.
    • If privilege is claimed for any of the books or documents scheduled (i.e. if the party believes that he/she cannot be forced to disclose something), such books or documents must be separately listed in the schedule and the grounds on which privilege is claimed in respect of each must be set out.
    • Each party must allow the other party to inspect and make copies of all books and documents disclosed or specified in a schedule delivered to them.
    • A book or document not so disclosed may not be used for any purpose at the trial by the party in whose possession or under whose control it is, without the leave of the court on such terms as to adjournment and costs as may be just. This means that if the other side needs time to read through and study the documents that were not disclosed before the trial, the court may adjourn the proceedings at the cost of the party that did not disclose the documents and rule that said party pay the wasted costs for the day. The other party may then call for and use such book or document in the cross-examination of a witness.

    Further discovery and particulars

    Further discovery is possible if a party believes that, in addition to the documents, books or tape recordings disclosed, other relevant documents or recordings may be in the other party's possession. If the whereabouts of such items are known, the party requesting them must state this in his/her notice for further discovery to the court.

    Further and better discovery is a mighty weapon in a divorce proceeding to obtain additional information regarding a spouse's financial status. A major advantage is the fact that the party who receives the notice must reply under oath. Any false statements can lead to prosecution for perjury.

    In terms of the court rules, a party may deliver a notice requesting such further particulars as are strictly necessary to enable him/her to prepare for trial, not less than 20 days before the trial. If a party does not adhere to such a request or fails to do so timeously and sufficiently, the other party may request for the case to be dismissed.

    Pre-trial conference

    The court may at any stage after close of pleadings, or at the request in writing of either party, direct that an informal conference be conducted in the presence of the judicial officer in chambers, in order to consider a settlement of disputes.

    Trial

    Trial proceedings commence with both parties or their legal representatives being given an opportunity to deliver an opening address, in which the court is informed of the issues that are in agreement and those that are in dispute between the parties.

    If, on the pleadings, the burden of proof is on the plaintiff, he/she must give evidence first. Where the burden of proof is on the defendant, the defendant will be first.

    A witness who is not a party to the action may be ordered by the court to leave the court until his/her evidence is required or after his/her evidence has been given; or to remain in court after his/her evidence has been given, until the trial is terminated or adjourned.

    Any witness may be examined by the court as well as by the parties, and the court may decide to call a witness not called by either party if it thinks his/her evidence necessary in order to discover the truth or answer the question before it.

    After both parties have given evidence, whoever went first may again address the court. The other party then has a chance and the party who went first may reply.

    Judgment

    A divorce trial must culminate in the granting of judgment. The court may grant any of the following orders:
    judgment for a party in respect of his/her claim in so far as he/she has proved the same;
    judgment for a party in respect of his/her defence in so far as he/she has proved the same; or
    absolution from the instance if it appears to the court that the evidence does not justify giving judgment for either party.

    Costs

    In giving judgment or in making any order including adjournment or amendment, the court may award such costs as may be just. These costs may also be subject to taxation. While costs are generally awarded to the successful party, this is not an immutable rule. A court may decide not to award costs at all, or may apportion the costs of the proceedings between the parties.

IMPORTANT TO NOTE

Divorce Mediation is a great option. Read more here.


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