Frequently Asked Questions
Family and Personal Law
For direct answers to your specific personal questions, please contact us directly.
Don’t panic. A divorce action summons must be served on you personally, and if this has not been done then there has not been proper service. Call the offices of the attorneys listed on the summons and inform them of this. They must then have the summons served again, which will allow you time to collect your thoughts. If there has been personal service, you have 10 working days from the service of the summons on you to simply defend the matter by delivering a Notice of Intention to Defend. Once the matter has been defended by delivering a Notice of Intention to Defend to your spouse’s attorneys, you have 20 working days to consult with your attorneys and to deliver your Plea and your Counterclaim in the divorce action. Your Plea responds to the contents of the Particulars of Claim attached to the summons served on you, and the Counterclaim sets out your position and what you want from the divorce action. So breathe, take a moment to collect your thoughts and start to prepare what you will need to ask your attorneys and what your intentions are in the divorce action.
Click the button below to be taken to our page which sets out the typical documents and information you will need to prepare to consult with your attorneys in a divorce action.
There is unfortunately no clear cut answer to this. Certain legal processes have to first be followed before you can apply for a trial date for the opposed divorce to be heard. The trial date you are provided with will depend on any unforeseen circumstances in the matter and will depend on what the earliest available dates are for the court to hear the divorce action. The number of days that the trial will need to run will decrease the chances of getting an earlier date, and unfortunately if the trial is not finalised in the number of days provided for then the trial has to be adjourned to the next available date in the schedule of the presiding officer presiding over the trial. A divorce can take anything from 1 year to 3 years depending on the complexity.
The minimum legal processes that must first be finished before a trial date can be requested from the court are that:
– The pleadings by both parties (the documents setting out what you and your spouse want in the divorce action) must have closed;
– Discovery has been made of the documents that you and your spouse intend using at trial to support what you have asked for in the pleadings; and
– A Rule 37 conference between the legal representatives and the case flow management hearing must have taken place in which the issues in the divorce action are narrowed down and defined, and the matter is certified as being ready to proceed to trial.
Unfortunately this is like asking how long a piece of string is, as every divorce is unique and the cost to litigate the divorce action depends on what happens during the course of the matter (eg. whether subpoenas need to be issued, whether any applications need to be brought, the cost of experts witness reports and testimony at trial etc.).
The cost of a divorce will vary depending on the legal fee rate of your attorneys and the amount of work done by them in finalising the divorce. It will also need to take into account the fees of any advocate employed to perform any work during the course of the divorce action, and the costs of preparation of your attorneys and advocate for trial.
Unfortunately the more acrimonious the divorce, the more you can be expected to have to spend to litigate the matter as it will be more difficult to settle the divorce action. It is recommended that where there is a reasonable opportunity for settlement that you give this full and proper consideration, as you can otherwise expect to spend hundreds of thousands of Rands to take the matter to trial and run the trial. Alternatively you can try negotiate or mediate using one of our expert mediators in our firm.
A divorce can seem daunting with the legal fees that need to be paid to litigate it, particularly where your spouse earns a far higher income than you and can afford to hire more expensive legal representatives. In these situations it is recommended that you bring a Rule 43 application in the High Court against your spouse. The court will then make a decision on certain interim relief until the divorce is final, which includes an order that your spouse should contribute a particular amount towards payment of your legal costs. These applications are designed to provide both the parties with as much of an equal footing as possible when litigating the divorce, and you have the option to bring a Rule 43(6) application at a later stage if you should require a further contribution to costs. Keep in mind that you will still need to see where you can cut costs and what other funds you can obtain.
Click the button below to visit our page on Rule 43 applications for more information.