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Divorce:Exception to particulars of claim

 

Raising an exception when the particulars of claim, served as an annexure to the divorce summons, have not disclosed the cause of action.

In terms of the court rules, once a summons is served on a defendant, that defendant has ten days to file a notice of intention to defend. He or she then has a further twenty days to file a plea or exception, with or without a claim in reconvention.

It sometimes happens that in the prayers to the particulars of claim, no cause of action is disclosed. An attorney when drafting the particulars of claim may for example ask a) For a decree of divorce; and b) For an order directing defendant to pay to Plaintiff R100 000.

In the abovementioned example the defendant has the right to except to the plaintiff’s particulars of claim if no mention is made as to why defendant must pay plaintiff R100 000. If for example the defendant owes the plaintiff that amount through an agreement of loan, mention must be made of that agreement. If no mention is made of that agreement then the particulars of claim do not disclose a cause of action and are bad in law.

An example of how your exception would be drafted may be as follows:

“The Defendant excepts to the Plaintiff’s Particulars of Claim on the ground that they do not disclose a cause of action and are bad in law.

“For an order directing defendant to pay plaintiff R100 000.00.”

Wherefore the Defendant prays that the Plaintiff’s claim at prayer (b) of Plaintiff’s Particulars of Claim be dismissed with costs.”

The exception is sometimes served on the other side together with the notice of intention to defend so that the drafter of the particulars of claim can see from the outset what the other side plans to do. The exception is set down for hearing and the court would then declare if the particulars of claim are bad in law or not.

Often in particulars of claim a party will ask for maintenance for him or herself. The safest way to protect yourself against an exception is to disclose a cause of action as to why you should for example be entitled to lifelong maintenance. You should for example list the following factors to substantiate your claim for lifelong maintenance:

One should also make the averment that the party from whom maintenance is claimed has sufficient means to afford the maintenance claimed.

In the usual course of events, a plea and counterclaim is filed after service of the notice of intention to defend. It is only in exceptional cases that an exception is served. Attorneys should be very careful when drafting the particulars of claim to ensure that a cause of action for every prayer is disclosed.

Once the exception is served, this no doubt serves to delay the whole divorce as the plaintiff would first have to defend the averments made in the exception. If there is no cause of action for asking for certain relief one must consider omitting that prayer totally in order to prevent having to defend an exception.


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