What to do when receiving a divorce summons?
To go through a divorce process is an emotional exercise as there are often shock, resentment and conflict involved. Therefore, getting the best divorce attorneys in South Africa to represent you is of utmost importance to ensure that justice prevails. For those asking “What to do when you receive a divorce summons?“
Here is your step-by-step plan of action:
- Once your receive the divorce summons from the sheriff, you have 10 days from date of service to appoint your attorney and file and serve your notice of intention to defend,
- After above, you have 20 days to file your plea and counter claim in response to your spouse’s claims. If this sounds confusing, don’t worry, this will be done by your attorneys based on your instructions to them.
- You are allowed in our South African Law to represent yourself in a divorce, but we strongly advise against that. Leave the dirty work to the professionals!
- Arrange a first consultation with a law firm that specialise in Divorce and Family Law matters. During the first consultation, your attorneys will explain the process and advise you on the way forwards.
- For the first consultation, you will be required to take the following documents to your attorneys:
- The birth certificates of the minor children.
- Marriage certificate.
- Salary slips of yourself and your spouse, which includes bank statements and investments portfolios.
- The pre-nuptial agreement if married out of community of property.
- Name of schools where the children attend to.
- List of monthly expenditure of the minor children and yourself for maintenance calculations.
- List of movable assets.
- List of immovable assets.
- List of policies, pensions and/or investments held.
- Details of the parties employer(s).
- If you don’t have all above items available at the first consultation, don’t stress! The outstanding documents can be supplemented at a later stage.
Frequently asked questions:
A divorce action is always done in the form of an action. That means you start the process with a summons and particulars of claims. If you initiate the procedure first, you will be the plaintiff and your spouse will be the defendant. Strategically, and in an opposed divorce, it is always advisable to be the plaintiff as you will be setting the pace of the divorce, thus being the dominus litis.
The answer is YES! Divorce proceedings can become very technical and having a skilled attorney or lawyer to guide you through the process of technicality’s, legislation, facts analysis and experts’ evidence, is highly advisable. A skilled family law attorney will also be very strategic with his moves, correspondence, and actions to ensure optimal success for you.
The fastest and easiest way of getting a divorce will be by an unopposed divorce action. This entails the spouses settling all of the disputes relating to divisions of the assets, the maintenance, the guardianship, care and contact of the minor children, and the accrual out of court. Both spouses would instruct a single legal practitioner to draft the court papers and the settlement agreement to sign, where after the divorce will be made an order of court.
A divorce can be denied in very limited situations. Examples would be where the divorce is a fraudulent front to defraud creditor, the court doesn’t have the required jurisdiction, or the parties have reconciled. It should be reiterated that no court will keep you in a loveless marriage if the marriage has irretrievably broken down.
Our courts will never keep one spouse in a loveless marriage. In effect, if the one spouse institutes divorce proceedings, and the other spouse refuse to get divorced, the court will nevertheless order a divorce of the parties if all of the procedural requirements are met, and the marriage has irretrievably broken down.
Yes, our courts will never keep one spouse in a loveless and unhappy marriage. In effect, you don’t require the consent of your husband to institute divorce action or obtain a divorce order. In the event that one spouse institutes divorce proceedings, and the other spouse refuse to get divorced, the court will nevertheless order a divorce of the parties if all of the procedural requirements are met.
Judges decide on divorce cases based on the facts apparent from the court papers, oral evidence, experts’ evidence, and after the legal practitioners’ arguments and submissions. These decisions are made after consideration of legislation and case law that developed throughout the years. Therefor, having a skilled legal team to fight your case will inevitably ensure that your matter is presented to the judge in the correct way.
Written by Heinrich Gonzales, Director of HFG Attorneys Inc.
The information provided herein should not be used or relied on as professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your professional adviser for specific and detailed advice.