HOW LONG DOES THE DIVORCE PROCESS TAKE?

A divorce action can be finalised within one month or it can take longer than 4 years.

The following factors usually play a role in determining how long a divorce action can be pending:

  1. The marital regime;
  2. If there are minor children involved;
  3. The complexity of dividing the joint estate or calculating the accrual;
  4. The party’s willingness to settle;
  5. The efficacy of the Legal Teams

An undefended divorce action can be finalised within a month. A defended divorce action can take up to, or longer than 4 years, as it takes about 18 (Eighteen) months to be allocated a Pre-trial date in our Western Cape High Court after you have applied for such a date. The application for a trial date can further only be done once certain other prescribed requirements have been met, which requirements takes time to complete.

WHAT IS THE DIFFERENCE BETWEEN AN UNDEFENDED AND A DEFENDED DIVORCE ACTION?

In an undefended divorce action, the parties have agreed on the following terms:

  1. The division of their joint estate (including movables) / the calculation and payment of one party’s accrual claim;
  2. The payment of spousal maintenance, if any (in quantum as well as the period);
  3. Contact and care arrangements in respect of minor children;
  4. Maintenance payable in respect of minor children;
  5. Payment of legal costs.

 If the parties have reached agreement on all the aforementioned points, a Consent Paper can be drafted and a Parental Responsibilities and Rights Agreement can be drafted and signed by both parties. A Summons will also be drafted and issued, incorporating the Consent Paper and Parental Responsibilities and Rights Agreement and be served on the “Defendant”.

The matter can be set down, for finalisation, within 10 (Ten) working days after the Summons has been served on the Defendant.

A Decree of Divorce will be issued on the set down date, the issued Court Order will only be available within the next few days, you are however legally divorced on the set down date.

Unfortunately, parties often think that their divorce is settled, but once certain legal requirements are brought to their attention, further time is spent on settling the matter in full.

If the parties cannot agree on the factors listed above, then a divorce action will be defended.  One party (“the Plaintiff”) will start the process and issue Summons, with a Particulars of Claim attached. The Particulars of Claim contains the terms of a final Order that the Plaintiff will be satisfied with, ignoring the other party’s (“the Defendant’s) position. The Summons and Particulars of Claim will then be served on the Defendant, personally, by the Sheriff.

The Defendant has 10 (Ten) working/Court days to file a Notice of Intention to Defend and with a further 20 (Twenty) working/Court days after that to file his/her Plea to the Plaintiff’s Particulars of Claim and his/her Counter-Claim. The Plaintiff will then be provided with an opportunity to timeously respond to the Defendant’s Counter-Claim, if a reply is needed.

The Court Rules (that differs for the High Court and the Regional Court) will then regulate the time-periods of the process. Several further pleadings / Notices have to be filed (for example Discovery Notices and Discovery Affidavits, Requests for Trial Particulars, Expert Notices) before you can apply for a Pre-Trial date and a first Pre-Trial date is usually awarded within 18 (Eighteen) months from date of filing the prescribed Application. 

During a Pre-Trial the matter will be declared trial ready or the Pre-Trial Judge may demand that the parties attend to further tasks before a Trial date is awarded, which will result in the Pre-Trial being postponed for a further Pre-Trial, in order for the parties to meet the Judge’s requirements. Once the matter is declared Trial ready by the Pre-Trial Judge, the Court file will be sent to a Registrar to allocate a Trial-date to the action. A Judge must also then be allocated to hear the matter and often Divorce Actions are not allocated a Judge, forcing the parties to rather settle.

WHAT IS THE DIFFERENCE BETWEEN BEING THE PLAINTIFF OR BEING THE  DEFENDANT?

There is not a significant difference.  The Plaintiff is the party starting the divorce action, taking the first step to issue the Summons. The Defendant is the party that will be served with the Summons, by the Sheriff.

 The onus to start the trial also rests on the Plaintiff and the Plaintiff is, inter alia, responsible for indexing and paginating the Court file and making sure that the matter is timeously enrolled. 

 In the event of the divorce action being settled, the Plaintiff attends to the appearance on the Set Down date, to lead evidence in Court on the break-down of the marriage and the terms of the settlement reached (a 3 minute Court appearance, led by an Advocate). The parties can however agree for the Defendant to attend to this appearance and the Advocate on brief will just explain why the Plaintiff is not attending.

WHAT IS THE COST OF A DIVORCE?

The is the most difficult question to answer, as one does not know from the outset whether the divorce is defended or undefended and how long it takes to finalise the divorce.

Most (if not all) Attorneys work on an hourly rate and “sell” their time, accordingly you will be billed for the time spent on your matter, including time spent on telecoms, e-mail correspondence, formal (letters) correspondence, time spent in Court and on drafting pleadings, as well as travelling time.

You as the Client, must therefore be weary on how often you e-mail or phone your Attorney and try to manage the costs of your enquiries. Most Attorneys will require a deposit to be paid upfront and then enter into a monthly payment-arrangement with their Clients.

Additional to the Attorney’s fees, the following expenses are also payable by Clients (there can be more):

  1. The Sheriff’s fee (paid by the Plaintiff)
  2. Travelling expenses (for attending to Court appearances and issuing process)
  3. Advocate’s fees (payable within 30 days of receiving their accounts)
  4. The costs of Experts involved

SHOULD WE FIRST TRY TO MEDIATE BEFORE STARTING WITH THE DIVORCE (LEGAL) PROCESS?

Yes, it is always better to settle the divorce action and mediation can assist in reaching settlement. 

The parties to a divorce action, where minor children are involved, often forget that they will have no other choice than to still continue to speak to one another after date of divorce and at least, until their minor children are self-supporting.

 Going through an acrimonious divorce does not promote co-parenting, which is in most cases unavoidable post-divorce. FAMAC is an organisation with trained Family Law Mediators that can assist parties in reaching settlement and signing a Consent Paper.  Bearing in mind how long a defended divorce action can take and the enormous cost implication thereof, it is always advised to rather try and settle the action.

Even if you cannot settle the entire divorce action, a great deal of points in dispute can be eliminated which would shorten the length of a trial and/or the involvement of Experts, both of the aforementioned aspects having a direct cost implication. 

It is however important to know that the matter can only be settled if both parties want to settle and are willing to compromise. My Principle always used to say “the best settlement is when both parties are evenly unhappy”.

NSRI’S WATER-SAFETY TIPS

It’s always tempting to take the plunge when temperatures soar and you’re in the holiday spirit....

Safe banking over the festive season

The South African Banking Risk Information Centre (SABRIC), on behalf of the banking industry,...

Reflecting on the Year 2020

The year is beginning to wind down pretty quickly and most of us are trying to fit in as much as...

HOUSING PRICES SPIKE INTO DOUBLE DIGITS

  During South Africa's lockdown, the average house price went into a rapid decline, with...

LANDLORDS AND TENANTS: Know Your Rights

This year, many stressed South Africans have been forced to tighten their belts yet another...

POPIA – THE SUMMARY

PROTECTION OF PERSONAL INFORMATION ACT (Also known as POPIA) Why do we need the Protection of...

Rent Versus Salary - What South Africans can afford accommodation?

Even before the global pandemic, South Africa was in dire a dire economic situation. Acting as a...

DECEASED ESTATE PROPERTY TRANSFERS

During a person’s lifetime, he/she will accumulate assets as well as liabilities. The assets can...

THE IMPORTANCE OF HAVING A WILL

    Most people do not know whether their loved ones have executed a Will, where...

PROS AND CONS OF EACH TYPE OF PROPERTY OWNERSHIP

Though many might not be aware of it, there are three different forms of homeownership in South...

EVERYTHING YOU NEED TO KNOW BEFORE HOUSE HUNTING

With more affordable property prices and bank approval rates at historically high levels, coupled...

FAQ's When Buying or Selling a Property

Q: To whom do I pay the deposit? A: The Purchaser’s deposit can be paid either to the estate...

CERTIFICATES OF COMPLIANCE

If you are selling your property, then you are going to most certainly need a number of...

PROPERTY PRICING - WHY AND HOW TO GET IT RIGHT

When it comes to putting a property on the market,  some sellers believe listing the property...

MY TENANT WANTS TO BUY, CAN THE RENTAL AGENT CLAIM COMMISION?

With the interest rate at a low 7%, tenants are finding that it might be cheaper to purchase...

HOW MANY CONVEYANCERS DOES IT TAKE TO TRANSFER A PROPERTY?

Buying or selling a property for the first time is a milestone event in any person's life....

DIVORCE & ACCRUAL – LIVING ANNUITIES AN ASSET IN THE ESTATE

In the case of CM v EM it was held in the Supreme Court of Appeal of South Africa...

BUILDING VS HOME CONTENTS INSURANCE KNOW EXACTLY WHAT YOUR INSURANCE COVERS

It appears that many South Africans took the opportunity to do renovations at their homes, during...

HOW TO FAST TRACK THE PURCHASE OF YOUR PROPERTY

Purchasing a property is a big decision, one in which the buyer will have...

THE IMPORTANCE OF A LIVING WILL 

What is a living will? A living will is a document that lets people state their wishes...

SOUTH AFRICAN WOMEN'S DAY

Have you ever wondered why we celebrate Women’s Day on the 9th August in South Africa? It has...

DOES YOUR HOME OFFICE QUALIFY YOU FOR A TAX DEDUCTION?

Does your home office qualify you for a tax deduction? As the old adage goes, change is as good...

HOLD ON TO YOUR STATUS AS A HOMEOWNER

Clients in financial difficulties in these tough times can get to keep their homes, provided they...

THE PANDEMIC AND BUSINESS INTERRUPTION COVER, CAN YOU CLAIM?

  “…it must be asked whether, but for the Covid-19 outbreak, the interruption or...

THE MEDIA MAY BE CALLING IT AN "ACT OF GOD", BUT WHAT DOES THE LAW SAY ABOUT FORCE MAJEURE AND COVID-19?

When disaster strikes it is easy for the world to fall into disarray. The impact of natural...

A DAY IN THE LIFE OF A CONVEYANCER DURING THE COVID 19 PANDEMIC!

A DAY IN THE LIFE OF A CONVEYANCER DURING THE COVID 19 PANDEMIC! Armed with comfortable shoes,...

Electronic Signatures in Property and Other Transactions

“To sign a document means to authenticate that which stands for or is intended to represent the...

POPI COMES INTO FULL EFFECT ON 1 JULY ARE YOU READY?

Protection of Personal Information Act “POPI” Comes into full effect on 1 July 2020 Are you...

QUESTIONS TO CONSIDER DURING THE REPORTING OF AN ESTATE

Questions to consider during the reporting of an estate   How do I report an estate to the...

ALL YOUR PROPERTY QUESTIONS ANSWERED!

All your property questions answered!   Experts answer your questions on property matters...

NO FFC - NO COMMISSION NOT ALWAYS THE CASE?

NO FFC – NO COMMISSION NOT ALWAYS THE CASE?   Estate agents are not entitled to earn...

LANDLORDS MUST 'GET REAL' ABOUT PROPERTY PRICE EXPECTATIONS

Article By Bonny Fourie Property 360 / 7 June 2020 Property is only a sound investment if you...

BUYER'S MARKET LIKELY TO LAST

Article courtesy of Property 360:  25 May 2020 No rush if you want to buy – market will go...

4 SMART THINGS YOU CAN DO RIGHT NOW TO SAVE MONEY DURING SA’S DEEP COVID-19 RECESSION

South Africa was headed for a recession way before Covid-19 turned everything upside down. As a...

PROPERTY SELLERS – PREPARE FOR SPLUMA

Many factors can delay your property transfer, and all of them are likely to cost you.  A...

WHAT ARE YOUR RIGHTS WHEN IT COMES TO FORCED COVID-19 TESTING?

As the COVID-19 pandemic is spreading across the globe, Minister of Health, Zweli Mkhize has...

How to make a will and get it witnessed

Locked down during the pandemic: How to make a will and get it witnessed The last few weeks have...

IS YOUR HOUSE IN ORDER?

Getting your house in order involves big things, such as having life insurance and a valid will,...

WHAT HAPPENS TO THE SIGNED ANTENUPTIAL IF YOUR WEDDING CEREMONY IS POSTPONED DUE TO COVID-19

The Covid-19 pandemic and the national lockdown that was implemented in order to contain the...

Arrested under the Disaster Management Act?

Arrested under the Disaster Management Act? You have the right to challenge it! Admission of...

The risks of dying without a will (Albeit not a valid one)!

Although we are in lockdown and may be working for home, many of us have a bit more time on our...

DO TENANTS STILL HAVE TO PAY RENT DURING LOCKDOWN?

 Following please find answers to the pertinent questions regarding the payment of rent...

TIPS FOR INVESTING IN PROPERTY FOR RETIREMENT

Have you ever wondered if real estate is a sound investment? Well, it certainly can be! There are...

FAQ’S FOR DIVORCES

HOW LONG DOES THE DIVORCE PROCESS TAKE? A divorce action can be finalised within one month or it...

NEW RULES FOR WHO GETS THE KIDS THIS WEEKEND

Who gets the kids this weekend? Following please find new regulations around the movement of...

WESTERN CAPE RENTAL CONSIDERATIONS

In recent times the Western Cape has become the area to stay in. With the spectacular sea view or...

WHAT TO LOOK OUT FOR BEFORE BUYING A PROPERTY

You’ve searched far and wide for the perfect home for you and your family, and you’ve finally...

CONTACT OUR PAARL OFFICE

Email: paarl@ngolaw.co.za
Tel: +27 (0)21-870-1185
Address:
 138 Main Road, Paarl, WC 7646

CONTACT OUR TYGERVALLEY OFFICE

Email: info@ngolaw.co.za
Tel: +27 (0)21 914 4481
Address: 
5 Ground Floor, Bateleur Office Park, Pasita Road, Tygervalley