Divorce: How does the process work?
As promised; we now look at the Divorce process.
All divorces are dealt with either in the High Court or in the Regional Divorce Court; which courts have been specifically created to assist the High Court in dealing with divorce matters. There is a High Court in each major city; and various Regional Divorce Courts in each Region of each province.
As stated in our previous blog; yesterday; divorces can be broadly categorised as unopposed or opposed.
In an unopposed divorce:
- The Plaintiff, or his attorneys, issue a summons out of the Divorce Court; where it acquires a case number from the Court Registrar; and this document (Combined Summons) is then sent to the relevant Sheriff for service of a copy of same on the Defendant. The original summons is returned to the Divorce Court with the Sheriff’s return of service confirming how, when and where he served same on the Defendant.
- After service on him/her, the Defendant has 10 court days to decide whether to defend the summons or not. If he/she defends it and gives proper notice of his/her intention to do so; the matter becomes an opposed matter. If he/she does not, within that time frame, defend it; the Plaintiff or his/her attorney may apply to the court for an undefended trial date.
- On the trial date; the Plaintiff appears in court and gives his/her evidence very briefly; and the matter is finalised. The divorce order is issued by the court about a week later and the final divorce order may be uplifted from the court by the Plaintiff. The Defendant does not automatically receive a copy; unless he/she has specifically arranged for one.
In an opposed divorce:
- If the matter is defended by the Defendant; he/she must within 20 days of giving notice of his/her intention to defend the action; file and serve his/her Plea with or without his/her counterclaim. A Plea is the Defendants defence to the Plaintiff’s claim; and his/her counterclaim is his/her reverse summons asking for a divorce on the Defendant’s terms. The Pleadings are then closed; and an opposed trial date may be arranged with the Registrar provided certain pre-trial issues are first dealt with. It takes a couple of months at least to get an opposed trial date; and sometimes it I more than a year since the summons was originally issued by the Plaintiff.
This is the basic process; but it is unwise to try and deal with this process yourself.
Shop around and get quotes from Attorneys and others that can assist you with the process.
Try and settle the terms of the divorce with your spouse; before you start the process; and get an agreement in principle on custody and care of children, rights of reasonable access to the children and maintenance and financial issues.
Once you have achieved this; you can start the process.
Registrars’ Offices are supposed to assist people with their divorce summonses for free; bar for any court fees and sheriff’s fees; but beware; the clerks are not qualified lawyers; and this can create problems at a later stage; as you will be bound by your pleadings when you get to court eventually.
If you want our help with a divorce please send us an email to firstname.lastname@example.org and we will quote you to assist you with the process.
Should you wish to comment on this or any other legal topic; just also send us an e-mail; and we will respond as set out above.
The Legal Advice Office Team.