DIVORCE, CONTESTED OR UNCONTESTED?

Divorce is not as simple as just calling it quits on your marriage. Often, many considerations have to take place when considering divorce, and often people are left uncertain as to what route could be best for both parties to ensure that there is an amicable and fair separation of the parties for whatever reason may have caused the breakdown of the marriage and the legal implications that it may have on their estates and family.

The first step that the courts will look at is if there has been an irretrievable breakdown of the marriage, but what is an irretrievable breakdown? Although our laws do not fully define what such breakdown encompasses, below are a few examples:

1. Adultery is committed during the marriage’s subsistence, and the other party finds that they cannot condone such a break in trust and can no longer live together as partners.
2. One of the parties has been declared a habitual criminal and is imprisoned as a result.
3. Neither party share any love or affection for one another and no longer wish to be married to each other.
4. The parties have been separated from “bed and table” and do not see the possibility of reconciling.
5. One party has abandoned the marital household, and the abandoned party no longer wishes to be married to the other.

The above is not an exhaustive list; each party’s circumstances must be considered and adapted to provide valid reasons. The courts, however, will not tolerate any fraudulent reasoning for such breakdowns, such as to curtail any financial implications of marriage, such as sequestration or insolvency.

When instituting divorce, an important question will arise regarding the divorce, which will usually be the question of a contested or uncontested divorce.

What is an uncontested divorce?

An uncontested divorce is often seen as a simpler procedure to follow in divorce. However, to proceed with such divorce, the parties will have to agree on several factors as this type of divorce will only work if both parties are in agreement on how the divorce will proceed, namely on the division of their matrimonial assets, liabilities and further issues such as the determination of maintenance payments and how the arrangements regarding minor children will be dealt with if the parties have such minor children.

To proceed with such divorce, the parties must submit an agreed-upon settlement agreement where all of the above determinations have been agreed upon. The parties will also have to encapsulate a parenting plan which deals with the rights and responsibilities that both parties have over the minor children, should there be such minor children. These two documents can, however, be captured in one single document upon the approval of the parenting plan by the Family Advocates offices.

An uncontested divorce has several advantages over a contested divorce, some of which are as follows:

1. Both parties can agree on an issue on which they both have a preference rather than leaving it to the court and third parties to decide upon the dissolution of the marriage.
2. The effects of the divorce on any minor children are often limited as the divorce is finalized without any need to place the children as part of the dispute.
3. It follows an expedited process as most uncontested divorces may be finalized within a few months compared to contested divorces.
4. Uncontested divorces are often solved on a fixed fee basis, whereas contested divorces may cost considerably more due to the active litigation involved in such divorces.

What is a contested Divorce?

A contested divorce is one where the parties do not agree on any or most of the issues. Due to the differences that both parties face, the only option would be to institute an action for divorce, and in this case, both parties would be represented by attorneys, who will then plead their matters as part of bringing the matter before the court.

There, however, still exists the opportunity to resolve the issues the parties thought they might have had and then to return to a quasi-uncontested divorce where the parties can reach an agreement and settle the matter. In this circumstance, one party will have to give notice that it withdraws its intention to defend to have the matter enrolled for an expedited divorce process.

Should the parties not reach such an agreement, they will have to approach the court for a trial date and present their case to a Magistrate or a Judge, who will then decide on what grounds the divorce will be granted.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor any loss or damage arising from reliance upon any information herein. Please feel free to contact Meyer and Partners Attorneys Incorporated should you require further information or specific and detailed advice. Errors and omissions excepted (E&OE)

Meyer and Partners Attorneys have offices in Centurion and can assist with all of your Family Law, Civil Law, Contractual and Labour related matters.