A respondent can get barred from opposing a divorce summons previously served upon them if they failed to serve opposing documents within stipulated time frames according to the uniform court rules of the High Court. A notice of motion asking to have the bar uplifted and removed would then have to be served on the respondent for the matter to proceed further.
Once a divorce summons is served on a party in a divorce matter, that party has 10 (ten) working days to give notification of his/her intention to defend. That party then has 20 (twenty) working days to file a plea and counterclaim. If that plea and counterclaim are not served and filed, the other side must formally demand a plea within 10 (ten) working days. If there is no response to that demand for plea, the defaulting party will be barred from pleading.
Once a party is barred from pleading, he/she reserves the right to launch a notice of motion and serve it on the other side asking that the bar be uplifted and removed. This notice of motion would need to be accompanied by an affidavit making out a proper legal case as to why the bar should be uplifted and removed.
In one of my divorce cases, a man consulted me after he had been served with a divorce summons. He had entered a motion to defend but had not filed a plea and counterclaim and had therefore been barred from pleading. A court date had not been reserved and the matter had been set down in court on an unopposed basis. We drafted a notice of motion and affidavit asking for the bar to be uplifted and removed.
It was a High Court divorce and on the notice of motion we asked for an order condoning the applicant’s non-compliance with the rules of court relating to the service of process and the non-compliance with the notice period stipulated in Uniform Rules of Court 22 and 24, as amended, for the filing of the plea and claim in reconvention.
Part of the relief sought by my client on our papers was that he be granted leave to serve and file his plea and counterclaim within 5 (five) days of the date upon which the court grants the order. There is no fixed test which the court applies when deciding whether or not to grant the relief sought. The courts do however take into account certain factors when deciding whether or not to grant applications of this nature. The courts look at whether a reasonable explanation has been given for the delay, and whether or not the application is bona fide and not made with the object of delaying the respondent’s claim. The court also looks at whether there is no indication of reckless or intentional disregard of the rules of court, whether the applicant’s case is ill-founded and whether any prejudice caused to the other party could be compensated for by an appropriate order as to costs.
In the case mentioned above, my client was successful in his application to have the notice of bar uplifted. He was able to give a reasonable explanation for the delay in filing his plea and counterclaim as well as for the other factors mentioned above. What swung things in his favour too, was that he was a lay person, wholly ignorant of the law. He had also worked far from where his attorney was based, and this obstructed him from going to consult her and to instruct her on how the plea and counterclaim should be drafted.
It is important for clients going through a divorce to understand how the whole process works and to regularly follow up. In the present case my client was under the bona fide but mistaken impression that he had taken every step that was required of him to safeguard his rights. The rules of court clearly state that you have 20 (twenty) working days after filing a notice of intention to defend to file a plea and counterclaim, and the last thing you want is to be out of time and barred, and have to pay additional legal expenses for the bar to be uplifted.
Service of the divorce Summons
Non-compliance with a divorce order