Many people are unaware or uncertain of the difference between an opposed and an unopposed divorce and are not sure which applies to them. This article aims to educate the layman a bit more regarding the difference between the two and the standard process to be followed in the case of an unopposed divorce (bearing in mind that each divorce is slightly different and may vary somewhat from what is set out below).
An unopposed divorce is a divorce where both parties have agreed to the divorce itself as well as to all aspects of the divorce (division of the estate, primary residence of the children, maintenance to be paid etc.). This is naturally then the best way of getting divorced as it is quicker, easier and less emotionally daunting than an opposed divorce (where the parties are not in agreement).
With an unopposed divorce, the parties will sign a settlement agreement which will basically set out all of the aspects of the divorce and what has been agreed between the parties in relation thereto. If there are assets to be divided, the assets must be listed (both immovable and movable) and the agreement between the parties must be clearly stipulated for each such asset.
If there are minor children involved, the settlement agreement must also include a comprehensive contact schedule for the parent who will not be exercising primary residence of the children and must ideally provide for standard contact as well as holidays, birthdays, Mother’s Day, Father’s Day, special occasions and travel. The settlement agreement must also stipulate the agreed maintenance amount to be paid by the contact parent as well as when this amount will be paid and until the children reach what age. The more comprehensive the agreement, the less room there will be for confusion or misinterpretation in the future.
The settlement agreement will then be attached to the summons, which will be issued (given a case number at the relevant court) and served on the Defendant by sheriff.
The settlement agreement will also have to be sent to the relevant Office of the Family Advocate to be endorsed or approved by them, if there are minor children involved. The court will only make the settlement agreement an order of court where it has been successfully endorsed by the Office of the Family Advocate, so this is a very important step.
Once the time allowed for the Defendant to enter an appearance to defend the matter has expired (a period of 10 (ten) court days which is approximately 2 (two) weeks), the matter can then be set down on the unopposed roll for hearing. Unopposed matters are always heard on a specific day of the week and so unfortunately the Plaintiff will have to make themselves available to appear in court on that specific day. In the South Gauteng High Court, for example, unopposed matters are always heard on Fridays.
Once the matter has been successfully set down, the court file must be prepared for the hearing date. The file must be indexed and paginated and a copy of the court file bundle must be given to the attorney or advocate who will be representing the parties on the day. Your attorney will however be responsible for ensuring that all of these preparatory steps are completed well before the time.
On the hearing date, the Plaintiff will appear in court along with the attorney or advocate. The Plaintiff may be asked a few questions by the Presiding Officer however this depends on the specific judge and on how many matters there are to be heard.
Barring any unforeseen circumstances, and assuming that the judge is satisfied, he or she will grant the divorce and will also order that the signed settlement agreement be made an order of court. This means that, if either party violates the agreement, they will be in contempt of court and can be fined or even imprisoned as a result.
The final divorce order will then have to be typed by the court typists and will normally be ready for collection approximately 2 (two) weeks after the order was granted. Your attorney should attend to uplifting a copy of the order and sending same to the parties for their records.
This can then be taken to the Department of Home Affairs where they will amend your marriage status from Married to Divorced.