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Draft you own Divorce Summons and Particulars of Claim, Western Cape High Court, Cape Town

In South Africa, a court of law would be approached to divorce a couple if the marriage broke down irretrievably. In other words, the marriage cannot be saved. Once a decree of divorce is granted, then spouses are immediately allowed to remarry and move on with their lives.  This is what is hoped and expected. There are however factors that may keep spouses connected post-divorce. This could vary from couple to couple.

Connecting former spouses post-divorce

If there are minor children born from the marriage, then the parties may have to deal with each other in relation to child maintenance, and visitation after the divorce. If it is ordered or agreed upon prior to the divorce, that one spouse should pay personal maintenance to the other spouse, or alimony, then on that basis the parties may have to continue dealing with each other after the divorce.

The divorce process in South Africa

Many spouses contemplate getting divorced. However, do not know what procedures need to be followed. Only courts of law in South Africa can divorced couples. And not every court is authorised to do so. For examples, the criminal courts or tax courts will not be able to divorce a couple. The High Courts and the family courts would be able to divorce a couple. The entire legal process starts with the issuing of a summons out of the relevant court.

Issuing of a Summons from the divorce court

A summons is a legal document that needs to be drafted. The summons will be issued out of the court that has jurisdiction to attend to the divorce. Usually, it would be the court that deals with divorces where one of the parties resides in.   The registrar of the court would sign and stamp the summons and provide a case number. Basically, a court file is opened.

Particulars of claim

Attached to the summons would be a Particulates of Claim. This document basically outlines certain relevant information to the divorce court. For example, when the parties were married and details of minor children if any and the reasons for the breakdown of the marriage. The other party and the court would, therefore, know what issues they are going to deal with. Below you will find an example of a Particulars of Claim. You will also find an online form which you can complete to assist you in starting that divorce process.

Example of information in a Particulars of Claim

1. The Plaintiff and the Defendant are as described on the face on the summons. 2. The Defendant and/or Plaintiff are domiciled within the area of jurisdiction of this Honourable Court. 3. On 01 January 2000, at Cape Town, Western Cape, the parties were married In Community of Property, and the marriage still so subsists. Kindly find attached a copy of the marriage certificate marked “A”. 4. Plaintiff avers that by virtue of the following facts and circumstances the marriage relationship between the parties has broken down irretrievably and that there is no reasonable prospect for the restoration thereof in that: 4.1 There is no love and affection and meaningful communication between the parties; and 4.2 The Parties do not wish to live as husband and wife.

WHEREFORE PLAINTIFF PRAYS FOR:

A. A Decree of Divorce; B. Equal division of the Joint Estate; C. Costs, only in the event this action is defended; and D. Further and / or alternative relief. DATED AT SIGNED AT CAPE TOWN THIS___DAY OF __________________2020.   ______________________ Per: JOHN WILLIAMS (Plaintiff in Person) 4 Green Street, Greenland, WESTERN CAPE TO: THE REGISTRAR HIGH COURT CAPE TOWN AND TO: JANE WILLIAMS 1 Apple Street, Apple Town, WESTERN CAPE

Complete the free online divorce form below to assist you with your unopposed divorce.

If you want to attend to your own uncontested divorce, we can to help you at no charge. Fill in the form below, and then our system will send you an email with the details you provided, which you should include in the divorce documents. [ninja_form id=35]    
Posted on by Telelaw

Draft you own Divorce Summons and Particulars of Claim, Western Cape High Court, Cape Town

In South Africa, a court of law would be approached to divorce a couple if the marriage broke down irretrievably. In other words, the marriage cannot be saved. Once a decree of divorce is granted, then spouses are immediately allowed to remarry and move on with their lives.  This is what is hoped and expected. There are however factors that may keep spouses connected post-divorce. This could vary from couple to couple.

Connecting former spouses post-divorce

If there are minor children born from the marriage, then the parties may have to deal with each other in relation to child maintenance, and visitation after the divorce. If it is ordered or agreed upon prior to the divorce, that one spouse should pay personal maintenance to the other spouse, or alimony, then on that basis the parties may have to continue dealing with each other after the divorce.

The divorce process in South Africa

Many spouses contemplate getting divorced. However, do not know what procedures need to be followed. Only courts of law in South Africa can divorced couples. And not every court is authorised to do so. For examples, the criminal courts or tax courts will not be able to divorce a couple. The High Courts and the family courts would be able to divorce a couple. The entire legal process starts with the issuing of a summons out of the relevant court.

Issuing of a Summons from the divorce court

A summons is a legal document that needs to be drafted. The summons will be issued out of the court that has jurisdiction to attend to the divorce. Usually, it would be the court that deals with divorces where one of the parties resides in.   The registrar of the court would sign and stamp the summons and provide a case number. Basically, a court file is opened.

Particulars of claim

Attached to the summons would be a Particulates of Claim. This document basically outlines certain relevant information to the divorce court. For example, when the parties were married and details of minor children if any and the reasons for the breakdown of the marriage. The other party and the court would, therefore, know what issues they are going to deal with.

Below you will find an example of a Particulars of Claim. You will also find an online form which you can complete to assist you in starting that divorce process.

Example of information in a Particulars of Claim

1. The Plaintiff and the Defendant are as described on the face on the summons.
2. The Defendant and/or Plaintiff are domiciled within the area of jurisdiction of this Honourable Court.
3. On 01 January 2000, at Cape Town, Western Cape, the parties were married In Community of Property, and the marriage still so subsists. Kindly find attached a copy of the marriage certificate marked “A”.
4. Plaintiff avers that by virtue of the following facts and circumstances the marriage relationship between the parties has broken down irretrievably and that there is no reasonable prospect for the restoration thereof in that:
4.1 There is no love and affection and meaningful communication between the parties; and
4.2 The Parties do not wish to live as husband and wife.

WHEREFORE PLAINTIFF PRAYS FOR:

A. A Decree of Divorce;
B. Equal division of the Joint Estate;
C. Costs, only in the event this action is defended; and
D. Further and / or alternative relief.

DATED AT SIGNED AT CAPE TOWN THIS___DAY OF __________________2020.

 

______________________
Per: JOHN WILLIAMS
(Plaintiff in Person)
4 Green Street,
Greenland,
WESTERN CAPE

TO: THE REGISTRAR
HIGH COURT
CAPE TOWN

AND TO: JANE WILLIAMS
1 Apple Street,
Apple Town,
WESTERN CAPE

Complete the free online divorce form below to assist you with your unopposed divorce.

If you want to attend to your own uncontested divorce, we can to help you at no charge. Fill in the form below, and then our system will send you an email with the details you provided, which you should include in the divorce documents.

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Related Post

What to know when wanting to appeal a High Court Judgment?

Everyone has a right to take a matter to a court of law. At the same time, everyone has a right to challenge a decision of a judicial officer. We all make mistakes and a judicial officer is no different. This article deals with the court rules relating to appeals from decisions emanating in the High Court. Therefore, should you wish to appeal a decision of a Judge in the High Court, have a look at the High Court rules below. When dealing with Appeals in the High Court, one looks at the Uniform Rules, or RULES REGULATING THE CONDUCT OF THE PROCEEDINGS OF THE SEVERAL PROVINCIAL AND LOCAL DIVISIONS OF THE HIGH COURT OF SOUTH AFRICA. The Rules are amended from time to time. Rule 49 deals with Civil appeals from the High Court. It is copied below.

49 Civil Appeals from the High Court

(1) (a) When leave to appeal is required, it may on a statement of the grounds therefor be requested at the time of the judgment or order. (b) When leave to appeal is required and it has not been requested at the time of the judgment or order, application for such leave shall be made and the grounds therefor shall be furnished within fifteen days after the date of the order appealed against: Provided that when the reasons or the full reasons for the court’s order are given on a later date than the date of the order, such application may be made within fifteen days after such later date: Provided further that the court may, upon good cause shown, extend the aforementioned periods of fifteen days. (c) When in giving an order the court declares that the reasons for the order will be furnished to any of the parties on application, such application shall be delivered within ten days after the date of the order. (d) The application mentioned in paragraph (b) above shall be set down on a date arranged by the registrar who shall give written notice thereof to the parties. (e) Such application shall be heard by the judge who presided at the trial or, if he is not available, by another judge of the division of which the said judge, when he so presided, was a member. (2) If leave to appeal to the full court is granted the notice of appeal shall be delivered to all the parties within twenty days after the date upon which leave was granted or within such longer period as may upon good cause shown be permitted. (3) The notice of appeal shall state whether the whole or part only of the judgment or order is appealed against and if only part of such judgment or order is appealed against, it shall state which part and shall further specify the finding of fact and/or ruling of law appealed against and the grounds upon which the appeal is founded. (4) A notice of cross-appeal shall be delivered within ten days after delivery of the notice of appeal or within such longer period as may upon good cause shown be permitted and the provisions of these Rules with regard to appeals shall mutatis mutandis apply to cross-appeals. (5) In the case of an appeal against the judgment or order of the court of the Witwatersrand Local Division, the judge president of the Transvaal Provincial Division shall determine whether the appeal should be heard by the full court of the said local division. As soon as possible after receipt of the notice of appeal or cross-appeal, if any, the registrar of the local division shall ascertain from the judge president his direction in the particular case. If the judge president has directed that the appeal be heard by the full court of the Witwatersrand Local Division, the said registrar shall immediately inform the parties of the direction. If not so directed by the judge president, the said registrar shall inform the registrar of the provincial division as well as the parties accordingly. (6) (a) Within sixty days after delivery of a notice of appeal, an appellant shall make written application to the registrar of the division where the appeal is to be heard for a date for the hearing of such appeal and shall at the same time furnish him with his full residential address and the name and address of every other party to the appeal and if the appellant fails to do so a respondent may within ten days after the expiry of the said period of sixty days, as in the case of the appellant, apply for the set down of the appeal or cross-appeal which he may have noted. If no such application is made by either party the appeal and cross-appeal shall be deemed to have lapsed: Provided that a respondent shall have the right to apply for an order for his wasted costs. (b) The court to which the appeal is made may, on application of the appellant or cross-appellant, and upon good cause shown, reinstate an appeal or cross-appeal which has lapsed. (7) (a) At the same time as the application for a date for the hearing of an appeal in terms of subrule (6) (a) of this rule the appellant shall file with the registrar three copies of the record on appeal and shall furnish two copies to the respondent. The registrar shall further be provided with a complete index and copies of all papers, documents and exhibits in the case, except formal and immaterial documents: Provided that such omissions shall be referred to in the said index. If the necessary copies of the record are not ready at that stage, the registrar may accept an application for a date of hearing without the necessary copies if- (i) the application is accompanied by a written agreement between the parties that the copies of the record may be handed in late; or (ii) failing such agreement, the appellant delivers an application together with an affidavit in which the reasons for his omission to hand in the copies of the record in time are set out and in which is indicated that an application for condonation of the omission will be made at the hearing of the appeal. (b) The two copies of the record to be served on the respondent shall be served at the same time as the filing of the aforementioned three copies with the registrar. (c) After delivery of the copies of the record, the registrar of the court that is to hear the appeal or cross-appeal shall assign a date for the hearing of the appeal or for the application for condonation and appeal, as the case may be, and shall set the appeal down for hearing on the said date and shall give the parties at least twenty days’ notice in writing of the date so assigned.  (d) If the party who applied for a date for the hearing of the appeal neglects or fails to file or deliver the said copies of the record within 40 days after the acceptance by the registrar of the application for a date of hearing in terms of subrule (7) (a) the other party may approach the court for an order that the application has lapsed. (8) (a) Copies referred to in subrule (7) shall be clearly typed on A.4 standard paper in double spacing, paginated and bound and in addition every tenth line on every page shall be numbered. (b) The left side of each page shall be provided with a margin of at least 35 mm that shall be left clear, except in the case of exhibits that are duplicated by photoprinting, where it is impossible to obtain a margin with the said dimensions. Where the margin of the said exhibits is so small that parts of the documents will be obscured by binding, such documents shall be mounted on sheets of A4 paper and folded back to ensure that the prescribed margin is provided. (9) By consent of the parties, exhibits and annexures having no bearing on the point at issue in the appeal and immaterial portions of lengthy documents may be omitted. Such consent, setting out what documents or parts thereof have been omitted, shall be signed by the parties and shall be included in the record on appeal. The court hearing the appeal may order that the whole of the record be placed before it. (10) When the decision of an appeal turns exclusively on a point of law, the parties may agree to submit such appeal to the court in the form of a special case, in which event copies shall be submitted of only such portions of the record as may be necessary for a proper decision of the appeal: Provided that the court hearing the appeal may require that the whole of the record of the case be placed before it. (11) Where an appeal has been noted or an application for leave to appeal against or to rescind, correct, review or vary an order of a court has been made, the operation and execution of the order in question shall be suspended, pending the decision of such appeal or application, unless the court which gave such order, on the application of a party, otherwise directs. (12) If the order referred to in subrule (11) is carried into execution by order of the court the party requesting such execution shall, unless the court otherwise orders, before such execution enter into such security as the parties may agree or the registrar may decide for the restitution of any sum obtained upon such execution. The registrar’s decision shall be final. (13) (a) Unless the respondent waives his or her right to security or the court in granting leave to appeal or subsequently on application to it, has released the appellant wholly or partially from that obligation, the appellant shall, before lodging copies of the record on appeal with the registrar, enter into good and sufficient security for the respondent’s costs of appeal. (b) In the event of failure by the parties to agree on the amount of security, the registrar shall fix the amount and the appellant shall enter into security in the amount so fixed or such percentage thereof as the court has determined, as the case may be. (14) The provisions of subrules (12) and (13) shall not be applicable to the Government of the Republic of South Africa or any provincial administration. (15) Not later than fifteen days before the appeal is heard the appellant shall deliver a concise and succinct statement of the main points (without elaboration) which he intends to argue on appeal, as well as a list of the authorities to be tendered in support of each point, and not later than ten days before the appeal is heard the respondent shall deliver a similar statement. Three additional copies shall in each case be filed with the registrar. (16) A notice of appeal in terms of section 76 of the Patents Act, 1978 (Act 57 of 1978), or section 63 of the Trade Marks Act, 1963 (Act 62 of 1963), may be served on the patent agent referred to in the Patents Act, 1978, or the agent referred to in section 8 of the Trade Marks Act, 1963, who represented the respondent in the proceedings in respect of which an appeal is noted. (17) In the case of appeals to the full court in terms of the provisions of a statute in which the procedure to be followed is laid down, this rule is applicable as far as provision is made for matters not regulated by the statute. (18) Notwithstanding the provisions of this rule the judge president may, in consultation with the parties concerned, direct that a contemplated appeal be dealt with as an urgent matter and order that it be disposed of, and the appeal be prosecuted, at such time and in such manner as to him seems meet.        
Posted on by Telelaw

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