Divorce proceedings during lockdown

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Unfortunately, during the lockdown period only urgent matters arising from the activities associated with disaster management will be attended to.All is however not at a deadlock and this period can be utilised to save time and money on a lengthy and expensive procedure.

There are two types of procedures for divorces:

  1. Uncontested divorce:

When parties agree to the terms of the divorce, the terms can be contained in a settlement agreement.  The settlement agreement will then be attached to the Particulars of Claim.   Once the lockdown period is lifted, the summons will be issued and the summons can then be served on the other party and on the Family Advocate (if there are minor children involved).   After a period of 10 days, they will be able to apply for a court date and the settlement agreement will become an order of court and the parties will be divorced.

  1. Contested divorce:

If the parties cannot agree to the terms of the divorce, an attorney will draft the Particulars of Claim, which contains the claim and terms of the person who institutes the divorce proceedings.  The Particulars of Claim is then attached to the summons and will then be served on the other party.  The other party will then have 10 days to contest the divorce.   If not contested, the matter can proceed.

What can I do during the lockdown period to start the divorce proceedings?

Make copies of the following documentation to provide to your attorney when you instruct them:

  • The marriage certificate;
  • The antenuptial contract (if applicable);
  • Birth certificates of minor children (if applicable) and
  • Identity documents of the married spouses

The next step, possibly the hardest, is to discuss the possible settlement with your partner.  The items to be discussed should include:

  • Division of fixed assets;
  • Division of movable assets;
  • Division of life policies, annuities and pension funds;
  • Division and payment of debt; especially if there is a bond registered over a jointly owned property and repayment of monthly car premiums;
  • Medical aid contributions;
  • Personal maintenance between the parties; and
  • Who is going to be responsible for the costs of the divorce.

If the parties have children, they will need to decide on their parental rights and responsibilities for the minor children and each parents’ contribution in light of their earning capacities.  This includes but is not limited to:

  • Where the primary residence of the children will be;
  • Monthly maintenance and possible yearly escalation;
  • Medical contributions;
  • Educational costs and extramural activities;
  • Costs for tertiary education;
  • Reasonable contact and visiting rights; and
  • Division of school holidays.

The answers to the aforementioned questions will give you an idea whether the divorce will be contested or uncontested.

The next step will be to contact the attorney to assist you with drafting the settlement agreement.  Once this is signed, they can proceed to draft the necessary court documentation and the matter can proceed once the lockdown is lifted.

If you require assistance with these discussions, contact us so we can assist and guide you through this process.

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 for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)