A divorce can never really hit finality until there has been a full and frank disclosure by both parties of their assets and liabilities.
When two parties to a divorce are married out of community of property they often do not know what each other's assets and liabilities are. An attorney would sometimes start off by a letter to the other attorney requesting disclosure of his/her client's assets and liabilities. If there is an insufficient response to this request, the attorney may be forced to serve a “Section 7 Notice” on the other side. This Notice is in terms of the Matrimonial Act.
The Section 7 Notice is normally short and simply states for example “Be pleased to take notice that Plaintiff is required to provide Defendant with details of his assets and liabilities within 5 (FIVE) days of service hereof”. Some attorneys also request in the Section 7 Notice that the other side also supply documentary proof of the assets and liabilities, and that such documentary proof be annexed to their reply.
If the opposing attorney still does not respond to this Section 7 Notice within the five day period abovementioned, an attorney has the option to then serve a “Notice of Application to Compel” on his/her opposing attorney. Such a Notice will give a court day where an application is made to court that the other side serve a reply to the Notice in terms of Section 7 by no later than a certain date.
Such an application to compel would also state that in the event of the other side failing to comply and serve a reply they would be entitled to apply, on the same papers, for an order striking out any defence or counterclaim and that judgment be granted. The application to compel would normally be accompanied by a supporting affidavit where the attorney would annex the Section 7 Notice duly served on the other side.
A wise attorney would normally use the Section 7 Notice early on during the course of proceedings. This would also save the client money in the long run as it is normally easier to settle a case once you have a complete list of assets. It would make it easier to settle outside court.
A Section 7 Notice is similar to a notice calling on the other side to discover everything they intend to use at the trial or have in their possession. Very often a case does not get to the “discovery stage” if the Section 7 Notice has been sufficiently replied to.
So if you are going through a divorce and are married out of community of property, inquire with your attorney on the Notice in terms of Section 7. You having done a bit of homework will leave your attorney feeling pretty impressed!