Divorce: what to expect

In this series of short articles, Richard Wands, the Managing Partner of HJW Attorneys, the largest firm of attorneys in Fourways, will discuss the various aspects to getting divorced, from start to finish and will also discuss important concepts related to family law in general.

1. Beginning the divorce process
As difficult as the decision is, there may come a time when reconciliation or the restoration of a normal marriage relationship is simply improbable or impossible and the time has come to get divorced. If you find yourself in this position, it is very important firstly, to know what your rights are both in terms of the rights of care and contact to your children, as well as your proprietary rights and obligations in terms of maintenance (for your children and for yourself or your spouse, as the case may be) and in terms of your assets and how these will devolve upon divorce, which is governed by your marital property regime.
This will and should involve in depth discussions with your attorney, which will then lead to your attorney drafting a divorce summons, along with what is called a particulars of claim, which combined are the documents that initiate divorce proceedings. Once these are drafted, they will be issued either at a High Court or at Regional Magistrates Court, and these then need to be served by a sheriff of the Court on your spouse, personally. Due to the fact that getting divorced changes your status (from ‘married’ to ‘divorced’), it is a peremptory requirement that the summons is served on your spouse in person and the sheriff will then provide your attorney and the Court with a return of service, which explains that the sheriff did in fact serve on your spouse in person, and that the sheriff verified the identity of the person served on and when the summons was served.

2. What to do if you are served with a divorce summons
In the event that you are the person receiving the divorce summons, it is imperative that you consult with an attorney as soon as possible, as you are given ten (10) working days to file what is called an intention to defend. If you do not do so, your spouse may be able to go to Court without you knowing and obtain a decree of divorce in default due to your failure to file an intention to defend.
This will invariably mean too, that everything your spouse has asked for in their summons and particulars of claim will be granted and will be made an order of Court. For obvious reasons, you should act on receiving a divorce summons without delay.

In the next article, I will explain the various avenues that a divorce may follow, on both an opposed and unopposed basis.

Richard can be contacted on richard@hjw.co.za or 010 448 0609