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The legal end to a marriage

Written by Dale Hes

When you’ve tried everything to make your marriage work, a divorce may be the best option for both you and your partner. Divorce is difficult and stressful for families, and the legal process can be confusing.

A divorce is when a marriage is officially ended in a court of law. There are two types of divorce: unopposed – where both parties are in agreement that a divorce should take place; and opposed – where the parties do not agree on a divorce or its terms.

Josephine Peta, Senior Legal Admin Officer at the Department of Justice and Constitutional Development’s Office of the Family Advocate, explains that the divorce process starts when a summons is issued.

“A person who wants to have their marriage dissolved can get a divorce summons at a high or regional court, or they can approach an attorney to assist with the process. The spouse who starts the divorce proceedings is referred to as the plaintiff and the other spouse is the defendant,” said Peta.

Peta explained that the divorce summons must:

state that there is no reasonable chance of restoring the relationship,

make provision for the division of joint belongings or the enforcement of the terms agreed upon in the antenuptial agreement signed at the beginning of the marriage, and

set out what arrangements will be made for the couple’s children, such as who the child will live with.

“The summons must also state that the defendant has 10 days – in the case where he or she lives in the same area as the plaintiff, or 20 days – if the parties reside in different provinces, to answer the summons,” Peta added.

Once a case has been opened, documents are handed back to the plaintiff, who has to deliver two sets of these documents to the sheriff in the area where the defendant works or lives.

“The sheriff will then serve the documents personally on the defendant and issue a return of service, proving that the documents were served. Where there are children involved, the Office of the Family Advocate must be informed,” Peta pointed out.

After a period of 10 or 20 days, the plaintiff may enrol the divorce on the court roll. In contested divorces, the defendant must answer the summons by notice of intention to defend the matter.

“Once that is done, he or she must also file a plea within a specific period. A plea is a statement in which the defendant responds to the allegations in the summons.

After a plea is filed, the plaintiff can also reply to the plea or file a notice of set down.

“The matter will then be enrolled for trial,” Peta concluded.

What is a default divorce?

A court will grant a divorce by default if a summons has been served on the spouse and he or she does not respond within the allocated time period. It is, however, advisable to contact your spouse first because they may later attempt to set the divorce aside on the grounds that there was a good excuse for missing the deadline.

Did you know?

Vuk’uzenzele newspaper will be running a series of articles related to divorce. Look out for these in the next edition.