Amicable divorces, unopposed divorces & the Easter Bunny

Completely uncontested divorces are rare, and even if spouses are amicable towards each other, some form of mediation may be required to sort out the inevitable complexities (ie to achieve agreement). But...they do happen (usually when there are no children involved, no pets, few assets, married out of community without accrual, and no complications) and are worth striving for.

Email lawyer@capetownlawyer.co.za to book an appointment with an uncontested divorce lawyer.

Easter weddding fighting

An uncontested divorce (also known as an "amicable divorce", "consensual divorce", "no contest divorce" or an "unopposed divorce") is when both spouses are in Agreement to end their marriage and can work together to reach an Agreement on the settlement terms of the divorce; the process of divorce can be streamlined; easier and more cost effective. Although an uncontested Divorce is an easier process than that of a Contested Divorce; Legal Guidance should still be sought. This will ensure rights are protected.

The uncontested/unopposed divorce takes approximately 4 to 6 weeks; depending on the Court in your jurisdiction’s available dates for hearings.

Steps in the uncontested divorce procedure :

The Parties must reach an Agreement with each other.
The Attorney drafts a Settlement Agreement and a Parenting Plan (if there are minor children born from the marriage). The Settlement Agreement and Parenting Plan contain the terms and conditions that the spouses have agreed on and sets out:-
1. The Division of Assets and Property.
  Factors to consider are whether :
  - the parties to the marriage were married in community of property or out of community of property and with or without the accrual system.
  - assets jointly owned eg. should Immovable property and or movable property be sold? And, if so, how the proceeds would be divided; or whether one spouse would keep certain property.
  - a Spouse has a claim to his/her partners pension fund.
2. Child and Spousal Maintenance
  - Both parents are responsible to provide maintenance for the child’s needs. The Primary Care giver parent usually receives child maintenance in order for the child to have needs met such as food; clothing; housing; medical and educational needs.
  - Whether a Spouse will be paid maintenance for a certain time period after the divorce to help support the spouse after the dissolution of the marriage.
3. Care and Contact Arrangement in respect of minor children.
  Both parents have rights of contact or visitation with their child. These need to be stipulated so that no disputes can be had in the future. The Agreement should specifically make provision for holidays – school and religious; and birthdays.
The Settlement Agreement and Parenting Plan must be signed by both parties.
A Combined Summons with Particulars of Claim and A Notice of Opposition to Mediation are drafted by the Attorney. The Settlement Agreement and Parenting Plan are annexed to the Summons and Particulars of Claim.
The Summons and is then issued at Court; served on the Family Advocate (if minor children are involved); and forwarded to the Sheriff of the Court for personal service on the Defendant.
After personal service the Defendant then has 10 days to Defend the matter (if the Spouses live in the same area); or 20 days to Defend (if Spouses live in different provinces). The Defendant can sign a Notice that he/she does not intend to Oppose the matter. This should be filed in the Court file.
If there are minor children involved the copy of the Summons; Settlement Agreement and Parenting Plan are sent to the Family Advocate with a request for the Family Advocates approval. The Family Advocate may make recommendations to the Court which would assist the Judge/Magistrate to grant an Order.
A court date is applied for. Some Courts require a Notice of Set Down to be served on the Defendant informing the Defendant of the date of hearing.
The Court file is Indexed and Paginated and placed in the correct pigeon hole at Court for hearing.
On the date of hearing only the Plaintiff needs to attend at Court.
Once the case is called the Plaintiff is sworn in and the Advocate/Attorney will pose questions for the Plaintiff to answer; these include :
1. personal details such as residential address;
2. marital details;
3. reasons for the breakdown of the marriage;
4. details of minor children;
5. confirmation that the Settlement Agreement filed in court is the one signed by the Parties. The Plaintiff will be requested to identify the signatures on the Settlement Agreement.
The Judge/Magistrate will then, if satisfied, grant the Divorce Order incorporating the Settlement Agreement and Parenting Plan.

Spouses may yearn for an easy and simple divorce, but even these can be emotionally challenging. It is advisable to get legal guidance from an Attorney, rather than attempting a diy divorce.

Article written by Cape Town lawyer, Clare Faria, email clare@cloetebaker.co.za to draw on her expertise at uncontested divorces

Uncontested divorce documents/paperwork

The following documents need to be drafted:

Settlement agreement
Parenting plan (not required if there are no minor children from the marriage)
Combined Summons with Particulars of Claim and A Notice of Opposition to Mediation

Supporting documents required are:

Identity Documents.
Utility Bills reflecting your residential addresses.
Marriage certificate.
A copy of the Antenuptial Contract (if applicable)

Other key information required in the drating of the Settlement Agreement and Parenting Plan are:

Details of property – movable and immovable and details of how the same will be split between the parties.
Details of Retirement fund Schemes.
Maintenance details.
Child care schedules.

Are uncontested divorces inexpensive?

An uncontested divorce which requires no mediation naturally costs less than a contested divorce where there is more engagement with lawyers, psychologists, mediators and other professionals.

But if you're searching for a cheap/low-cost divorce, you may be disappointed to find out that an uncontested divorce typically costs roughly R12,000 to R15,000 in South Africa in legal fees alone; depending on:

whether minor children are involved.
is it a regional or high court matter.
the complexity of the marital regime.
if anything overseas is involved, the cost will balloon out of the range; uncontested international divorces are significantly more expensive.

Note that the above are rough estimates, it is essential that you get an exact quote from a divorce lawyer in order to establish what it is likely to cost.

Pro-tip: negotiate up front with your divorce lawyer for a flat fee.

How quick is an uncontested divorce?

Generally speaking, an uncontested divorce in South Africa typically takes around four to six weeks to finalize once all the documentation has been submitted to the court. The duration depends on the backlog of cases in the court system and any specific requirements of the court handling the case. If there are complications or delays in the process it will take longer.

In divorce matters one needs to steel oneself psychologically for the possibility of it taking considerably longer than expected before the the divorce is legally finalised; unfortunately this can hold up one's life, for example many people in the Cape Town dating scene will refuse to date somebody until their divorce is legally finalised (even though for all intents and purposes, it had ended way before the divorce was finalised).

Uncontested divorce mediation

As soon as an uncontested requires mediation of some form (which implies something is not competely uncontested), the costs are likely to increase.

Are you an expert on South African law and would like your articles published? Email lawyer@capetownlawyer.co.za to arrange.

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