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No lawyer divorce

I recently did a case where a Summons had been served on my client and he instructed me to defend it. His wife had gone to the Southern Divorce Court in Cape Town where she had been assisted.

The Summons which my client showed me was totally defective. The reality of the matter is that when you attend at the Court and tell them you want assistance, you will be assisted by people who do not have proper legal qualifications. You could end up losing out in a big way as a result of incorrect advice.

The first flaw which I noticed in the Summons was that the parties appeared to have been married in community of property, while in actual fact they were married with an antenuptial contract with the application of the accrual system. This is a basic point, and surely the official should have gotten that detail correct.

The reality of the matter is that the official who assists you asks you certain questions and then fills in the Summons in handwriting on a form provided by the court. Whilst this may save a person some money when the divorce is uncomplicated (ie. no children or assets), it can cost you a great deal in many a case, as usually there are children and assets of some nature in each and every case.

When it comes to the clause relating to the children, the form provided by the Court has a paragraph reading as follows "Defendant / Plaintiff to pay maintenance for (number) minor child(ren) born of the marriage, with Defendant's/Plaintiff's rights of reasonable access / supervised access." The official assisting you inserts the number of children and crosses out which party won't have to pay maintenance; and which party won't have access but presumably will have the child living with him/her after the divorce.

The paragraph mentioned above is so basic, that if made a Court Order, could lead to major problems of interpretation after the divorce. For example, each party's idea of what "reasonable access" is, may be quite different. One should have it stated in black and white exactly when the other party can have access to a child, e.g. every second weekend and every second school holiday.

The form provided at court, in Cape Town anyway, is outdated. It does not give the option of the parties being "Co- holders of parental rights", with the child having a "primary residence" and each party enjoying "equal rights of guardianship". These rights are what the new Children's Act encourages, and I find it strange that our Courts have not updated their forms in this regard.

A further clause in the form to be filled in at Court deals with pension/retirement funds. Many clients have come to me after the divorce and advised me that they were not correctly instructed when this form was filled in.

Most pension funds do not pay out if the correct name and number of the pension fund is not correctly inserted on the papers. This is not always explained to people at Court. After the divorce they then expect a pension payout from their spouse's pension and are greatly shocked when the pension fund does not want to pay out.

The above examples are only a few examples of how you can come unstuck by choosing a "do it yourself" divorce. The drafting of divorce pleadings is highly specialized and I would urge people rather to save up and spend a bit on legal fees than trying to "do it yourself", with the assistance of unqualified officials at Court.

A divorce specialist can point out to you the "ifs and buts" of every individual case. An unqualified official cannot unfortunately. Always best to get proper legal representation!

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