Once a divorce matter is settled, the preparation work involved in moving for the final divorce order is important.
One must make sure that the correct details are given to your attorney right at the start of the case. An incorrect ID number for example may lead to all kinds of problems at the department of home affairs. The attorney must prior to the day of divorce ensure that the settlement agreement (otherwise known as “consent paper” in some legal circles) has been endorsed by the family advocate if there are minor children involved.
Should the family advocate query something, oral evidence may have to be led in court to clarify a certain legal point. In the normal course an attorney should urge both parties to be present at court on the day of hearing. The chances of a final divorce order being granted are far greater if both parties are present at court, as it often happens that documents are lost at court, and if both parties are present they can verify what they had agreed on.
The Settlement Agreement should be signed in full in black ink by the Plaintiff and Defendant as well as two witnesses on the last page, and should be initialled on the bottom right hand corner of each other page by the Plaintiff, Defendant and two witnesses. An attorney should always get the parties to sign two copies of the settlement agreement in case one gets lost.
Although in terms of South African law the only time witnesses are required for a written agreement is when the contract is concluded for the sale of land, it would look better to a court if witnesses did sign the settlement agreement.
Once one leaves court on the day of divorce you are officially divorced, but the attorney should request the final typed divorce order, which normally takes about ten days to uplift from court. It is essential that both attorney and client ensure that the court types out the final order, and that it has been sent by the court to the department of home affairs. If the court slips-up and does not send it to the department of home affairs, the matrimonial status will not be changed, and one may find in years to come when you want to re-marry that you are still officially married!
Often a divorce party seeks the final typed divorce order on the same day of divorce. This is possible, and an efficient attorney would type out the divorce order himself to make the court’s job easier, and the court would then merely have to stamp the order. This is particularly relevant when a person wishes to travel overseas immediately after the divorce, or requires the order immediately for purposes of securing a mortgage bond or in purchasing a property in own name.
The attorney’s job is very important not only in settling the divorce matter, but also in “finishing off” in the sense of ensuring that documents had been correctly signed, and in obtaining the final typed divorce order.