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:
- The marital regime;
- If there are minor children involved;
- The complexity of dividing the joint estate or calculating the accrual;
- The party’s willingness to settle;
- 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:
- The division of their joint estate (including movables) / the calculation and payment of one party’s accrual claim;
- The payment of spousal maintenance, if any (in quantum as well as the period);
- Contact and care arrangements in respect of minor children;
- Maintenance payable in respect of minor children;
- 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):
- The Sheriff’s fee (paid by the Plaintiff)
- Travelling expenses (for attending to Court appearances and issuing process)
- Advocate’s fees (payable within 30 days of receiving their accounts)
- 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”.
