Uncontested or friendly Divorce: What procedure to be followed on the divorce court day?
This article provides information about the procedure to be followed for an uncontested divorce when making use of an Advocate at Court. An uncontested or friendly divorce is where both the husband and wife agree to all the terms of the divorce. This includes contact and care if there are minor children, as well as maintenance (child and personal) and proprietary aspects of the marriage. The divorce then gets finalised on an undefended base. This is not only quicker but also less emotionally draining and more cost-effective.
How does the divorce process start?
Once your uncontested divorce papers (Summons, Consent paper etc.) have been prepared, signed and issued, the documents would then have to be served on the Defendant by the Sheriff. If there are minor children, the Family Advocate has to endorse the documents and/or parenting plan. It is best that this takes place prior to when the matter is enrolled at court. Usually, the Plaintiff will appear at court. If he or she is not available, the Defendant may appear and give evidence.
Consultation on the Day of Divorce
If you issued your divorce summons in the High Court an Advocate will usually be appointed to appear with you. You may meet with the Advocate in Chambers, prior to your matter being heard for a brief consultation. This is done so that the procedure can be explained to you and it will prepare you for the questions that will be asked in court.
Attending to Court
After your consultation has taken place, you will meet the Advocate again at the High Court. The court sits at 10:00. This does not mean that your divorce will be heard at 10:00. The reason being, generally there are a number of cases listed on the court roll for this day.
The time it takes to get a Divorce
You will spend a few minutes in the witness box in front of the Judge in the High Court. However, you could wait for a brief period or a couple of hours before your matter will be heard.
The Questions the Advocate and Judge will ask you in Court:
– When your case is called, stand up and go to the witness box.
– Your advocate will stand up and inform the Judge that he/she is appearing on behalf of the plaintiff (your behalf).
– Thereafter you will take an oath or affirmation.
Thereafter, the Advocate will ask you questions which will include the following:
– Whether you are the Plaintiff in the matter and whether the address stipulated in the Summons is your address.
– Is this place your permanent place of residence?
– To confirm the identity of the Defendant and his/her address as it appears in the Summons.
– The Advocate will then establish the jurisdiction of the court by confirming that your address falls within the Court’s jurisdiction.
Details of the marriage
– The Advocate will then ask when and where did you get married?
– Were you married in community of property, or out of community of property excluding the accrual system?
– You will be shown your marriage certificate and the Judge will ask you whether it is the original marriage certificate and whether the information thereon is correct.
– Do you and the Defendant still live together as husband and wife? (If you answer in the affirmative, provide the Court with details of who will move out of the common home and when).
– You will then have to provide the Court with reasons for the breakdown of the marriage.
– Are there any children born from the marriage? (If your answer is yes, state their names, ages, and gender).
– If necessary, the Judge will continue to ask questions relating to parental rights and responsibilities, contact, etc.
Divorce Settlement (Consent paper / Parenting Plan)
– If there is a settlement agreement, it will be presented to you and you will be questioned if it is the original settlement agreement and if it is you and the Defendant’s signatures thereon.
The Divorce Order
The Judge will grant the Divorce Order (also referred to as a Divorce Decree) if the papers are in order and if he/she is satisfied that there has been an irretrievable breakdown of the marriage. Once the Judge grants your divorce you are for all practical purposes divorced from that moment on.
In about two weeks, the Decree of Divorce will be available at the Court Registrar and your lawyer will collect it and arrange that you get a copy of the decree.
Documents to Bring
In most cases, the client will have to bring his/her original marriage certificate to Court. A marriage certificate can be obtained at the nearest Home Affairs Office if you do not have a copy. You will also need your ID document and R20.00.
Advice to the client:
– Dress appropriately when you appear in the courtroom (Men should wear ties and jackets. Women should dress formally)
– Do not be late for court.
– Do not bring your children to Court.
– Take your original divorce certificate and settlement agreement (if any) on the day of your divorce.
– Talk loudly and clearly when addressing the Judge and Advocate.
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