The defended / contested / opposed divorce
What is a contested or opposed divorce?
Your spouse cannot, just because he or she does not want to get divorced, contest of defend the matter because they “think” that there might be a chance of reconciliation. As said before, as long as one party feels that the marriage has been irrevocably broken down, the Court would usually grant the divorce order. Sometimes emotions get the overhand and a party opposes the divorce proceedings out of spite, but once the realization of the huge and exorbitant costs hits, he/she is usually quite eager to settle the matter. If you and your spouse don’t agree to the terms of the divorce, the contested divorce process will be the next step in the process of finalizing your divorce. A contested divorce is more complicated, drawn-out and costly than an uncontested divorce. In most contested divorces both parties will have attorneys and even Advocates to assist them with the paperwork. After the pleadings and discovery phase (where all the documents are shared), the attorney of the plaintiff will apply for a court date. If no settlement can be reached, pre-trials and the final trial before a judge or magistrate will follow together with evidence that needs to be led.
On what basis can a divorce be contested or opposed?
No Court would ever force parties to stay together, even if one of the parties does not want to get divorced. However, practice has taught us that in two main issues which run to trial are (a) the disputes of primary care of any minor children and (b) the division of marital assets – these would be valid reasons for opposing or defending a divorce matter.
How long does it take to get a contested divorce?
Contested divorces can take many weeks or months or sometimes years to reach the divorce trial stage. This is because of the overcrowded Court rolls of matters that are brought before Court. The divorce trial itself usually only takes a couple of days, however most, if not all, cases settle before reaching the final trial stage.
What is the cost of a contested divorce?
Contested or defended divorces are charged in accordance with the divorce attorney’s hourly rate or the prescribed tariffs of the Courts. Disbursements (expenses) which include phone calls, emails, printing, scanning, copies, Sheriff’s accounts, Advocate’s accounts, etc. will also be for the client’s account. This is an expensive route to follow in order to get divorced and in all probability the average of such an account (which you will have to pay) could be anything from R10 000 to R50 000 or more.
If the matter is defended, do we have to go to trial?
It is never too late to settle a divorce and all attempts should be made to bring the divorce to an amicable end even on the day of the trial. At any time the parties could agree and a settlement drafted and signed by both spouses and the magistrate or judge could be requested to make the settlement an order of court. Which steps should be taken to start a contested divorce? Contact a divorce attorney to arrange a consultation.
What are the dangers of getting a divorce without an attorney?
While handling your own case might seem like a great way to save time and money, unless you happen to be a divorce lawyer yourself, you probably have NO idea how the divorce system works. That’s a problem. No matter how smart or educated you are, the divorce system is unlike anything you’ve likely experienced before. It’s full of rules, forms, and paperwork. Mess any of these things up, and you may end up paying a hefty price or being screwed out of what you are legally entitled to. Should you opt for a Walton’s or CNA or internet template to be divorced by numbers, it might be a good idea just to consult with an attorney at least once before you complete these documents to find out what your rights are.
Getting the divorce forms at Court and doing it myself – is that an option?
Of course that is an option (it might not be the best option, but it is an option). Some courts have a roneo or template form of divorce that you can fill out to start the divorce proceedings. This is all good and well….. Until you run into the legal jargon and complexities of the court structures and rules of court. The pitfalls of formulating pleadings on precedents are eloquently stated by the Honourable Harms JA as follows: “pleadings and love letters have much in common. They are both personal and reflect somewhat of the author’s personality. To use precedents in both instances can be dangerous because precedents tend not to be applicable to the facts under consideration. Both explain the position of the parties involved. If too much or too little is said, problems may arise. On the end of the day they provide embarrassing evidence of the original intent of the author”.
