Legal aspects of divorce
Nearly half of all marriages in South Africa end in divorce. Divorce need not be bitter or erupt into a war. Unfortunately, though, in many divorces, spouses turn what could be an amicable end to their marriage into an emotionally difficult and expensive legal battle by allowing their anger, hurt and fear to take over their rational thinking. Getting divorced is never easy, but when people realise that it is not about winners and losers and massive legal bills, but about making a clean break and working out the terms of the divorce together or with the intervention of legal representatives, then the process can be relatively easy.
The early stages of divorce are usually characterised by strong emotions: pain, shock, betrayal, hurt and panic. Regardless of who initiated the divorce, whose actions led to the breakdown of the marriage, who was at fault and how long trouble had been brewing, the decision to proceed with a divorce is never an easy one.
The game of divorce
Divorce can be an expensive game. If you can, try your level best to conclude your divorce in an uncontested manner, without having to go to trial. Do everything you can to make the divorce as non-acrimonious as possible. Although your role as a spouse ends, if you have children, your role as a parent continues. A contested divorce means long unnecessary delays, huge legal bills and unpredictable emotions.
This advice may sound strange coming from a family law attorney who spends most of his days in court, but whatever you do, try to settle your divorce as soon as possible without resorting to a divorce trial in a contested manner.
The players
The parties to a divorce are called the plaintiff and the defendant. The plaintiff is usually the person who initiates the divorce process, and will also be the person who will appear in court once the divorce is set down as an uncontested divorce on the court roll. In a contested divorce, both the plaintiff and the defendant appear in court during a divorce trial. .
The venue
Divorce courts in South Africa are found within the setup of the High Court and the regional divisions of our magistrates’ courts. These courts operate fundamentally along the same lines as those courts that deal with car accidents, financial disputes such as liquidations and sequestrations, and criminal matters. Although the judges and magistrates in these courts are highly competent, the rules of these courts don’t always coincide with solving disputes that arise in the divorce process.
Why divorces should not go to trial
Once a divorce is contested and in the hands of attorneys, something called the adversarial system kicks in and the parties head for trial.
The adversarial system
If your divorce is contested, our courts apply what is called the adversarial system, which is built on the ancient legal practice of having legal representatives on each side fighting as hard as they can to beat their opponents at trial. This system forces the parties into a mindset of winners and losers. After hearing the evidence and arguments by each side’s legal representative, a neutral judge must figure out who is telling the truth in order to reach a just decision and to pass judgment favouring one side over the other.
In a contested divorce, each side will spend months, if not years, preparing for trial. Attorneys and advocates will investigate and scrutinise the facts, consult with witnesses, exchange and discover documents, and subpoena records of financial institutions in preparation for a trial that, if it occurs, will take place a few years after the summons was served. It is regrettably a long, winding road. Coming to an amicable resolution is not only cheaper and faster, it is less destructive for both parties and for any children that may be involved.
The early stages of divorce are usually characterised by strong emotions: pain, shock, betrayal, hurt and panic. Regardless of who initiated the divorce, whose actions led to the breakdown of the marriage, who was at fault and how long trouble had been brewing, the decision to proceed with a divorce is never an easy one.
The game of divorce
Divorce can be an expensive game. If you can, try your level best to conclude your divorce in an uncontested manner, without having to go to trial. Do everything you can to make the divorce as non-acrimonious as possible. Although your role as a spouse ends, if you have children, your role as a parent continues. A contested divorce means long unnecessary delays, huge legal bills and unpredictable emotions.
This advice may sound strange coming from a family law attorney who spends most of his days in court, but whatever you do, try to settle your divorce as soon as possible without resorting to a divorce trial in a contested manner.
The players
The parties to a divorce are called the plaintiff and the defendant. The plaintiff is usually the person who initiates the divorce process, and will also be the person who will appear in court once the divorce is set down as an uncontested divorce on the court roll. In a contested divorce, both the plaintiff and the defendant appear in court during a divorce trial. .
The venue
Divorce courts in South Africa are found within the setup of the High Court and the regional divisions of our magistrates’ courts. These courts operate fundamentally along the same lines as those courts that deal with car accidents, financial disputes such as liquidations and sequestrations, and criminal matters. Although the judges and magistrates in these courts are highly competent, the rules of these courts don’t always coincide with solving disputes that arise in the divorce process.
Why divorces should not go to trial
Once a divorce is contested and in the hands of attorneys, something called the adversarial system kicks in and the parties head for trial.
The adversarial system
If your divorce is contested, our courts apply what is called the adversarial system, which is built on the ancient legal practice of having legal representatives on each side fighting as hard as they can to beat their opponents at trial. This system forces the parties into a mindset of winners and losers. After hearing the evidence and arguments by each side’s legal representative, a neutral judge must figure out who is telling the truth in order to reach a just decision and to pass judgment favouring one side over the other.
In a contested divorce, each side will spend months, if not years, preparing for trial. Attorneys and advocates will investigate and scrutinise the facts, consult with witnesses, exchange and discover documents, and subpoena records of financial institutions in preparation for a trial that, if it occurs, will take place a few years after the summons was served. It is regrettably a long, winding road. Coming to an amicable resolution is not only cheaper and faster, it is less destructive for both parties and for any children that may be involved.
