van dyk attorneys - we serve without fear or favour

OPPOSED/CONTESTED DIVORCES

We understand and appreciate that going through a divorce is an unpleasant and very difficult experience for most individuals.  Thus we strive to carry as much of the burden as we can for our client whilst still maintaining constant contact with our client to ensure that our client is kept abreast of all developments. Our experienced divorce lawyers always aim to strike a balance between being stern and being fair with the opposition, and also a balance between securing our client their desired result and finalising the divorce as quickly as possible. 

A divorce is opposed (contested) if the parties are not able to agree and reach a settlement on various issues such as the division of their assets, primary residency of minor children, and maintenance payable to either of the parties and or the minor children.

In opposed divorces the costs may vary depending on different factors  such as the conduct of the parties, the complexity of the issues involved, and disbursements in respect of expert witnesses to name but a few.

In the event that the matter end up in an opposed divorce a presiding officer will decide on the issues after hearing evidence in support of your claim/defence and hand down judgment.

The formal documents in a divorce are referred to as pleadings.  A divorce is started by the issuing of a combined summons which is served on your spouse personally.  The pleadings that follow and exchanged between the parties in anticipation of the trial are typically a plea, counterclaim, plea to counterclaim and further pleadings.  Only the facts necessary to support your claim or defence to a claim should be pleaded. The main purpose of pleadings are to narrow the disputes between the parties and to ensure that neither party is surprised in court at the trial with the allegations to be answered, moreover, to guide the court on the evidence that is to be led at trial.

The trial involves the leading of evidence by both parties in support/opposition of the allegations in their respective pleadings.

The duration from start to finish of a divorce depend on the court in which the proceedings are instituted, the steps taken by each party to finalise their pleadings, the discovery process, and trial preparation.  In High Court in some instances it can take up to three years, however in the regional magistrate’s court matters are usually finalised in a shorter space of time for various reasons and may in some instances be finalised within a year.

After the close of pleadings and before the hearing of a trial, each party demands to see the documentation (bank statements, shareholdings in companies, credit card statements, bond accounts and tax returns etc.) and other material the other party intends to use at trial.  This process is called discovery.  Each and every document that a party will use at trial must be ‘discovered’, i.e. the other party must be given an opportunity to read the document before the trial commences.  It is usually during the discovery process that most of the hidden documents are found, as there are processes that can require specific documents to be brought forward.

An attorney may issue subpoenas to relevant financial institutions to deliver documents the other party failed to deliver.  Further discovery is possible if a party believes that, in addition to the documents, books or tape recordings disclosed, other relevant documents or recordings may be in the other party’s possession. If the whereabouts of such items are known, the party requesting them must state this in his/her notice for further discovery to the court.  Further and better discovery is a mighty weapon in a divorce proceeding to obtain additional information regarding a spouse’s financial status. A major advantage is the fact that the party who receives the notice must reply under oath.  Any false statements can lead to prosecution for perjury.

The plaintiff then makes an application for a trial date, which the registrar will set down (allocate). If the plaintiff does not apply for a trial date within the prescribed number of days after the pleadings have been closed, the defendant may do so.

The court may at any stage after close of pleadings, or at the request in writing of either party, direct that an informal conference be conducted in the presence of the judicial officer in chambers, in order to consider a settlement of disputes.

Trial proceedings commence with both parties being given an opportunity to deliver an opening address, in which the court is informed of the issues that are in agreement and those that are in dispute between the parties.

A witness who is not a party to the action may be ordered by the court to leave the court until his/her evidence is required or after his/her evidence has been given; or to remain in court after his/her evidence has been given, until the trial is terminated or adjourned.

Any witness may be examined by the court as well as by the parties, and the court may decide to call a witness not called by either party if it thinks his/her evidence necessary in order to discover the truth or answer the question before it.

After both parties have given evidence, whoever went first may again address the court. The other party then has a chance and the party who went first may reply.

A divorce trial must culminate in the granting of judgment.
In giving judgment or in making any order including adjournment or amendment, the court may award such costs as may be just. These costs may also be subject to taxation. While costs are generally awarded to the successful party, this is not an immutable rule. A court may decide not to award costs at all, or may apportion the costs of the proceedings between the parties.