William Tintinger Attorney / Prokureur
Giving sound and effective legal advice and rendering professional legal services since 1996
The uncontested (or unopposed) divorce is intended to be an expeditious and process with the least amount of emotional and monetary strain on and acrimony between the parties and their children.
It is desirable that the parties have reached an agreement beforehand on most of the issues and want to settle and finalize the matter peacefully and quickly. Only one of the spouses needs to obtain an attorney to finalize the matter. The attorney will consider the settlement negotiations between the parties and will record same in a formal settlement agreement, ensuring that all the legalities are met. The attorney will draft, file and serve all the necessary documents, including the summons, on the uncontesting party for his/her perusal and signature. The uncontesting party is also welcome to contact the attorney should he or she needs clarification on any issues or the party may prefer to consult an attorney of his/her choice to consider the ramifications of the agreement. The instructing party will remain the attorney's client. If all the parties agree on all the issues concerned and a formal settlement agreement is concluded, an uncontested divorce can be finalized within 6 – 8 weeks, depending on the availability of a court date on the court roll.
The contested divorce is a usually a lengthy, expensive and mostly emotionally charged process which places huge strain on the parties concerned, their children and their finances. A contested divorce occurs when the parties concerned cannot reach an agreement on the issues surrounding their divorce, for example custody over the children, the amount of maintenance to be paid and how their estate(s) should be divided. These divorces can last anywhere between 6 months and 2 years or longer and can be extremely expensive. However, many contested divorces never go to trial and the parties settle before the matter goes to court. This normally happens after months of attempting to reach an agreement.
It is therefor desirable that the parties reach an agreement beforehand and opt for an uncontested divorce, when the circumstances allow for it.
Due to the fact that we cannot determine how long these matters will take to finalize or what ancillary expenses will have to be borne, we charge an hourly rate for contested divorces. This hourly rate will not include the cost of the advocate, expert witnesses, sheriffs etc. who will also charge a fee.
What is a Rule 43 application?
Rule 43 of the Uniform Court Rules reads as follows:
43 Matrimonial Matters
(1) This rule shall apply whenever a spouse seeks relief from the court in respect of one or more of the following matters:
(a) Maintenance pendente lite;
(b) a contribution towards the costs of a pending matrimonial action;
(c) interim custody of any child;
(d) interim access to any child.
(2) The applicant shall deliver a sworn statement in the nature of a declaration, setting out the relief claimed and the grounds therefor, together with a notice to the respondent as near as may be in accordance with Form 17 of the First Schedule. The statement and notice shall be signed by the applicant or his attorney and shall give an address for service within eight kilometres of the office of the registrar, and shall be served by the sheriff.
(3) The respondent shall within ten days after receiving the statement deliver a sworn reply in the nature of a plea, signed and giving an address as aforesaid, in default of which he shall be ipso facto barred.
(4) As soon as possible thereafter the registrar shall bring the matter before the court for summary hearing, on ten days' notice to the parties, unless the respondent is in default.
(5) The court may hear such evidence as it considers necessary and may dismiss the application or make such order as it thinks fit to ensure a just and expeditious decision.
(6) The court may, on the same procedure, vary its decision in the event of a material change taking place in the circumstances of either party or a child, or the contribution towards costs proving inadequate.
A Rule 43 Application is aimed at offering temporary relief during the divorce process. One of the spouses’ attorneys applies to the Court for either one or more of the following:
Interim maintenance until the divorce is finalized and a final Court Order is granted.
A contribution towards the costs of the pending divorce.
Interim custody of any minor child/children.
Interim access to any minor child/children.
This application is especially useful if you are financially dependant on your spouse and want to divorce him/her or if your spouse refuses you access to your minor child/children after the divorce proceedings have been initiated. In these cases a Rule 43 application can bring interim relief until a final divorce order is granted.
We believe that in many instances, mediation (a faster, informal process) may be the appropriate route to settle disputes between the parties. Mediators assist the parties in attempting to reach an amicable agreement between them with the least amount of acrimony. Apart therefrom, the Courts may penalize parties who have not attempted to mediate a dispute, as was stated by His Lordship Brassey AJ in MB v NB 2010 (3) SA 220 (GSJ)
“ ... The suggestion met with the defendant's immediate approval and the plaintiff, albeit somewhat more grudgingly, acknowledged that it would certainly be equitable. No longer, it will be observed, was this an issue of principle, entailing a consideration, through the process of judging, of rights and duties; now it was a practical problem with an eminently practical solution that, emerging out of potential consensus, placed a premium on the dignity of the parties as autonomous adults, and provided an affirmation, symbolically important, of the bond that in happier times developed between the defendant and his putative son. How much richer would this solution have been had it emerged out of a consensus-seeking process, rather than in adversarial proceedings in which positions were taken up that gave every appearance of callousness and cruelty.
 This is but an instance of what mediation might have achieved. In fact, the benefits go well beyond it. In the process of mediation the parties would have had ample scope for an informed, but informal, debate on the levels of their estates, the amount of their incomes and the extent of their living costs. Nudged by a facilitative intermediary, I have little doubt that they would have been able to solve most of the monetary disputes that stood between them. The saving in time and legal costs would have been significant and, once a few breakthroughs had been made, I have every reason to believe that an overall solution would have been reached. Everyone would, in the process, have been spared the burden of two wasted days trying to settle in judge's chambers, and four further days in which the minutiae of assets and liabilities, and income and expenses, were interrogated.”.
The above was affirmed in FS v JJ AND ANOTHER 2011 (3) SA 126 (SCA):
“I endorse the views expressed by Brassey AJ in MB v NB, that mediation in family matters is a useful way of avoiding protracted and expensive legal battles, and that litigation should not necessarily be a first resort. Legal practitioners should heed s 6(4) of the Children's Act which provides that in matters concerning children an approach 'conducive to conciliation and problem solving should be followed and a confrontational approach should be avoided'.
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