What is Contested Divorce?
Contested divorce is when a married couple cannot come to an agreement about the terms around the dissolution of their marriage. There are methods of divorce in which a married couple can get divorced without the assistance of a divorce lawyer Johannesburg. However, when it comes to contested divorce, the details of the divorce and divorce law can be very complex. Divorce is a difficult time for the parties involved, but where a married couple is disgruntled, the process can be particularly difficult.
Divorce starts with consulting a divorce lawyer Johannesburg and serving a summons on the defendant. The summons will provide details about the terms of the divorce. The plaintiff can think about this and discuss the possible outcomes with his/her divorce lawyer Johannesburg. The summons will describe when the parties were married, the reasons for the divorce, the particular marital regime under which they were married and what the plaintiff wants out of the divorce. For example, the division of assets, debts, and pensions, maintenance, where the children will live, and disclose the rights of contact with the children.
This is a particularly sensitive area of contested divorce and all the more reason to have a good divorce lawyer Johannesburg present in a contested divorce case. Mothers often assume they have automatic rights as to being chosen as the children’s place of primary residence. This is not a supported notion in the courts of South Africa any more. As such, careful investigation and analysis will take place to determine what situation will be in the best interest of the children. The divorce lawyers Johannesburg work in close relation with other professionals, like social workers, to help the court make this determination.
Further, when the defendant received the summons, he/she has a certain period of time in which to contest the summons. The summons is served with a counterclaim document. The defendant can therein describe his objections and counter the claims which have been served on him/her. After this step, a further period of time will pass and the plaintiff will deliver his/her response to the counterclaim. This is referred to as the plaintiff’s plea to the defendant’s counterclaim. These documentations are referred to as the pleadings. Typically, these are the only documents delivered between the parties, but there are occasions in which further documents/pleadings may be delivered. Hereafter the plaintiff makes an application for a trial date, which will be allocated for a future date. While waiting for the trial date to commence, which can take months in some instance, a discovery process takes place. This is a process in which all relevant documentation to be used in court is brought to the surface and handed to the other party. This process is in accordance with court rules as the courts in South Africa will not read undiscovered documents. All documentation to be used in court must be “discovered” under this step, if not presented at the beginning of the divorce process. The divorce lawyer Johannesburg may issue a subpoena to the relevant institutions to deliver the documents. The process can be very expensive and so the hidden documents, to hide particulars about the financial situation, is brought forward. It is not uncommon for documentation that states the value of the estate to go suddenly missing. Take note that pension plans, retirement annuities and similar other policies all form as part of the estate and a portion of these policies can be claimed. After this step, with the delicate assistance of the divorce lawyers Johannesburg, comes the time in which to finalise the divorce. The spouse can go into an agreement at any point during the divorce process. If this is the case, they may draft an agreement and obtain a final order of divorce, without it being necessary to go on trial. If an agreement cannot be met during the process, a trail where each will present their defence and the court will make a decision on how the matter should be resolved.