When you are facing a divorce seek the assistance of an experienced divorce lawyer who is committed to helping you obtain the best possible outcome.
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Contested Divorce in South Africa
A contested divorce is always acrimonious. A divorce is contested when the parties are not able to agree on the division of their assets, and, when minor children are involved, who will be awarded primary care (custody) and what amount of maintenance, if any, will be paid to the spouse and/or the children. It is then usually left to the court to decide how to deal with the issues in dispute. A contested divorce may take anywhere between three months and three years, or more, to conclude.
In contested divorce cases we work on an hourly rate which we agree on with our client's in advance. In most of our cases we are able to obtain a contribution to cost order against the other spouse in the initial Rule 43 application. In one specific matter in the Cape Town High Court we were successful to secure a R 120 000.00 cost contribution which enabled our client, the wife to litigate against her husband in addition we also obtained an interim maintenance order of close to R 100 000.00 per month. Due the the high standard of living of the parties the court was prepared to make such an order.
In a contested divorce, the costs are variable, time based and heavily dependent on the conduct of the parties. It can cost thousands of rands in fees and disbursements. In contested divorce proceedings, we engage the services of various experts, which can include:
If the parties can’t pay these experts’ fees up front, their case will, of necessity, have to be presented without experts and, accordingly, less accurately.
The Process
A divorce action is instituted by the issuing of a summons. A divorce summons is unique in that it must be served personally on the defendant. The rules of the applicable court deal with the formulation of the specific claims that can be instituted in a divorce action based on the applicable matrimonial regime.
A court has jurisdiction in a divorce action if one or both parties are:
Procedure for Contested Divorces
If you can’t agree on an uncontested divorce, your attorneys will have to fight it out for you. You may well end up settling after your attorneys have spent lots of time and money arguing with each other on your behalf or you may end up in a divorce trial in front of a judge who will make decisions about your family and your future for you.
Even if you are totally convinced that you and your spouse are going to have a perfectly civil divorce, it’s a good idea to know what happens when spouses take personal and financial grievances to court. As you prepare for trial, you will have a number of opportunities to settle, so even if you think that because you haven’t settled yet, you never will, know that most divorce cases are settled before the trial begins, largely because contested divorces are so complicated. Depending on the amount of work that is involved, a contested divorce can also be extremely costly, especially because legal representatives levy fees on an hourly basis. Legal expenses are further increased when expert witnesses like forensic auditors, sworn appraisers, and clinical or industrial psychologists are called to testify in the trial.
The closer you get to trial, the more motivated you and your spouse should be to avoid spending the money and time that a trial demands and exposing yourselves (and your children, if you have any) to the uncertainty it brings.
The contested divorce process consists of various stages:
In contested divorce cases we work on an hourly rate which we agree on with our client's in advance. In most of our cases we are able to obtain a contribution to cost order against the other spouse in the initial Rule 43 application. In one specific matter in the Cape Town High Court we were successful to secure a R 120 000.00 cost contribution which enabled our client, the wife to litigate against her husband in addition we also obtained an interim maintenance order of close to R 100 000.00 per month. Due the the high standard of living of the parties the court was prepared to make such an order.
In a contested divorce, the costs are variable, time based and heavily dependent on the conduct of the parties. It can cost thousands of rands in fees and disbursements. In contested divorce proceedings, we engage the services of various experts, which can include:
- forensic accountants, to examine the couple’s assets;
- industrial psychologists, to determine a spouse’s employability for maintenance purposes;
- actuaries, to determine the quantum and duration of maintenance contributions or child support;
- private investigators, to gather information and dig up damaging evidence; and
- child-care experts, to assess who the children should live with.
If the parties can’t pay these experts’ fees up front, their case will, of necessity, have to be presented without experts and, accordingly, less accurately.
The Process
A divorce action is instituted by the issuing of a summons. A divorce summons is unique in that it must be served personally on the defendant. The rules of the applicable court deal with the formulation of the specific claims that can be instituted in a divorce action based on the applicable matrimonial regime.
A court has jurisdiction in a divorce action if one or both parties are:
- domiciled in the area of jurisdiction of the court on the date on which the action is instituted; or
- ordinarily resident in the area of jurisdiction of the court on the said date and has/have been ordinarily resident in South Africa for a period of not less than one year immediately prior to that date.
Procedure for Contested Divorces
If you can’t agree on an uncontested divorce, your attorneys will have to fight it out for you. You may well end up settling after your attorneys have spent lots of time and money arguing with each other on your behalf or you may end up in a divorce trial in front of a judge who will make decisions about your family and your future for you.
Even if you are totally convinced that you and your spouse are going to have a perfectly civil divorce, it’s a good idea to know what happens when spouses take personal and financial grievances to court. As you prepare for trial, you will have a number of opportunities to settle, so even if you think that because you haven’t settled yet, you never will, know that most divorce cases are settled before the trial begins, largely because contested divorces are so complicated. Depending on the amount of work that is involved, a contested divorce can also be extremely costly, especially because legal representatives levy fees on an hourly basis. Legal expenses are further increased when expert witnesses like forensic auditors, sworn appraisers, and clinical or industrial psychologists are called to testify in the trial.
The closer you get to trial, the more motivated you and your spouse should be to avoid spending the money and time that a trial demands and exposing yourselves (and your children, if you have any) to the uncertainty it brings.
The contested divorce process consists of various stages:
- pleadings
- application for and set down of trial date
- discovery of documents
- further discovery and particulars
- pre-trial conference
- trial
- judgement
