How to find the best advocate or attorney for legal services in South Africa?
Finding the best legal practitioners for you is not always straightforward. However, with some research and attention to detail, you will find the right person for the job sooner than later. Advocates and attorneys both assist their clients with legal matters. Legal issues vary, and not all advocates and attorneys do the same type of work. And then again, not all attorneys are the same, and not all advocates are the same. You should be familiar with this if you intend to use the top or best attorney or advocate for your matter.
Type of Attorney in South Africa
When we speak about attorneys, we need to differentiate them from lawyers in general. A lawyer can be someone who works for the government or in a corporation and who only advises on legal issues. They would not represent their employee at work, nor would they ever set foot in a courtroom. However, attorneys, on the other hand, usually represent clients in legal matters. The matter can relate to employment issues, family law issues, or debt collection. Therefore, the distinct difference between an attorney, and a lawyer who is not an attorney, is that the attorney would represent members of the public in legal matters. You also find attorneys who are conveyancers and notaries. They are specialists. Therefore, to obtain the best attorney for you, make sure you know that not all lawyers are attorneys and that not all attorneys do the same work.
Type of Advocates in South Africa
Advocates usually represent clients in legal matters. When you speak about and advocate, you usually refer to matters connected with the Court. You also have an advocate doing office work, but then that type of work can be done by an attorney or lawyer. In South Africa, we have two types of advocates. They are the referral advocate and then the Trust Account Advocate. The Trust Account Advocate can take work directly from members of the public. Basically, the same as an attorney can. The client would pay a deposit into the Trust Account Advocate’s Trust Banking Account. Advocate Muhammad Abduroaf is a Trust Account Advocate. He can therefore take instructions directly from members of the public. If you wish to instruct him on a legal matter, feel free to do so. If, however, he is unable to be of assistance, he will do his best to obtain a lawyer that suits your needs. [caption id="attachment_10671" align="alignnone" width="300"] Advocate Muhammad Abduroaf – Trust Account Lawyer- Best Legal Law Practitioners (Advocate Attorney) Child Custody Maintenance Contact Divorce Relocation Passport Consent High Court Cape Town[/caption] [caption id="attachment_10670" align="alignnone" width="300"] Advocate Muhammad Abduroaf – Trust Account Lawyer- Best Legal Law Practitioners (Advocate Attorney) Child Custody Maintenance Contact Divorce Relocation Passport Consent High Court Cape Town[/caption] [caption id="attachment_10669" align="alignnone" width="300"] Advocate Muhammad Abduroaf – Trust Account Lawyer- Best Legal Law Practitioners (Advocate Attorney) Child Custody Maintenance Contact Divorce Relocation Passport Consent High Court Cape Town[/caption] [caption id="attachment_10668" align="alignnone" width="300"] Advocate Muhammad Abduroaf – Trust Account Lawyer- Best Legal Law Practitioners (Advocate Attorney) Child Custody Maintenance Contact Divorce 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Attorney) Child Custody Maintenance Contact Divorce Relocation Passport Consent High Court Cape Town[/caption] [caption id="attachment_10663" align="alignnone" width="300"] Advocate Muhammad Abduroaf – Trust Account Lawyer- Best Legal Law Practitioners (Advocate Attorney) Child Custody Maintenance Contact Divorce Relocation Passport Consent High Court Cape Town[/caption] [caption id="attachment_10662" align="alignnone" width="300"] Advocate Muhammad Abduroaf – Trust Account Lawyer- Best Legal Law Practitioners (Advocate Attorney) Child Custody Maintenance Contact Divorce Relocation Passport Consent High Court Cape Town[/caption] [caption id="attachment_10661" align="alignnone" width="300"] Advocate Muhammad Abduroaf – Trust Account Lawyer- Best Legal Law Practitioners (Advocate Attorney) Child Custody Maintenance Contact Divorce Relocation Passport Consent High Court Cape Town[/caption] [caption id="attachment_10660" align="alignnone" width="300"] Advocate Muhammad Abduroaf – Trust 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align="alignnone" width="300"] Advocate Muhammad Abduroaf – Trust Account Lawyer- Best Legal Law Practitioners (Advocate Attorney) Child Custody Maintenance Contact Divorce Relocation Passport Consent High Court Cape Town[/caption] [caption id="attachment_10655" align="alignnone" width="300"] Advocate Muhammad Abduroaf – Trust Account Lawyer- Best Legal Law Practitioners (Advocate Attorney) Child Custody Maintenance Contact Divorce Relocation Passport Consent High Court Cape Town[/caption] [caption id="attachment_10654" align="alignnone" width="300"] Advocate Muhammad Abduroaf – Trust Account Lawyer- Best Legal Law Practitioners (Advocate Attorney) Child Custody Maintenance Contact Divorce Relocation Passport Consent High Court Cape Town[/caption] [caption id="attachment_10653" align="alignnone" width="300"] Advocate Muhammad Abduroaf – Trust Account Lawyer- Best Legal Law Practitioners (Advocate Attorney) Child Custody Maintenance Contact Divorce Relocation Passport Consent High Court Cape Town[/caption] [caption id="attachment_10652" align="alignnone" width="300"] Advocate Muhammad Abduroaf – Trust Account Lawyer- Best Legal Law Practitioners (Advocate Attorney) Child Custody Maintenance Contact Divorce Relocation Passport Consent High Court Cape Town[/caption] [caption id="attachment_10651" align="alignnone" width="300"] Advocate Muhammad Abduroaf – Trust Account Lawyer- Best Legal Law Practitioners (Advocate Attorney) Child Custody Maintenance Contact Divorce Relocation Passport Consent High Court Cape Town[/caption] [caption id="attachment_10650" align="alignnone" width="300"] Advocate Muhammad Abduroaf – Trust Account Advocate – Best Legal Law Practitioners (Advocate Attorney) Child Custody Maintenance Contact Divorce Relocation Passport Consent[/caption] [caption id="attachment_10649" align="alignnone" width="300"] Advocate Muhammad Abduroaf – Trust Account Advocate – Best Legal Law Practitioners (Advocate Attorney) Child Custody Maintenance Contact Divorce 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id="attachment_10636" align="alignnone" width="300"] Advocate Muhammad Abduroaf – Trust Account Advocate – Best Legal Law Practitioners (Advocate Attorney) Child Custody Maintenance Contact Divorce Relocation Passport Consent[/caption] [caption id="attachment_10635" align="alignnone" width="300"] Advocate Muhammad Abduroaf – Trust Account Advocate – Best Legal Law Practitioners (Advocate Attorney) Child Custody Maintenance Contact Divorce Relocation Passport Consent[/caption] [caption id="attachment_10634" align="alignnone" width="300"] Advocate Muhammad Abduroaf – Trust Account Advocate – Best Legal Law Practitioners (Advocate Attorney) Child Custody Maintenance Contact Divorce Relocation Passport Consent[/caption] [caption id="attachment_10633" align="alignnone" width="300"] Advocate Muhammad Abduroaf – Trust Account Advocate – Best Legal Law Practitioners (Advocate Attorney) Child Custody Maintenance Contact Divorce Relocation Passport Consent[/caption] [caption id="attachment_10632" align="alignnone" width="300"] Advocate Muhammad Abduroaf – Trust Account Advocate – Best Legal Law Practitioners (Advocate Attorney) Child Custody Maintenance Contact Divorce Relocation Passport Consent[/caption] [caption id="attachment_10631" align="alignnone" width="300"] Advocate Muhammad Abduroaf – Trust Account Advocate – Best Legal Law Practitioners (Advocate Attorney) Child Custody Maintenance Contact Divorce Relocation Passport Consent[/caption] [caption id="attachment_10630" align="alignnone" width="300"] Advocate Muhammad Abduroaf – Trust Account Advocate – Best Legal Law Practitioners (Advocate Attorney) Child Custody Maintenance Contact Divorce Relocation Passport Consent[/caption]
How to find the best advocate or attorney for legal services in South Africa?
Finding the best legal practitioners for you is not always straightforward. However, with some research and attention to detail, you will find the right person for the job sooner than later. Advocates and attorneys both assist their clients with legal matters. Legal issues vary, and not all advocates and attorneys do the same type of work. And then again, not all attorneys are the same, and not all advocates are the same. You should be familiar with this if you intend to use the top or best attorney or advocate for your matter.
Type of Attorney in South Africa
When we speak about attorneys, we need to differentiate them from lawyers in general. A lawyer can be someone who works for the government or in a corporation and who only advises on legal issues. They would not represent their employee at work, nor would they ever set foot in a courtroom. However, attorneys, on the other hand, usually represent clients in legal matters. The matter can relate to employment issues, family law issues, or debt collection. Therefore, the distinct difference between an attorney, and a lawyer who is not an attorney, is that the attorney would represent members of the public in legal matters. You also find attorneys who are conveyancers and notaries. They are specialists. Therefore, to obtain the best attorney for you, make sure you know that not all lawyers are attorneys and that not all attorneys do the same work.
Type of Advocates in South Africa
Advocates usually represent clients in legal matters. When you speak about and advocate, you usually refer to matters connected with the Court. You also have an advocate doing office work, but then that type of work can be done by an attorney or lawyer.
In South Africa, we have two types of advocates. They are the referral advocate and then the Trust Account Advocate. The Trust Account Advocate can take work directly from members of the public. Basically, the same as an attorney can. The client would pay a deposit into the Trust Account Advocate’s Trust Banking Account.
Advocate Muhammad Abduroaf is a Trust Account Advocate. He can therefore take instructions directly from members of the public. If you wish to instruct him on a legal matter, feel free to do so. If, however, he is unable to be of assistance, he will do his best to obtain a lawyer that suits your needs.
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Options parents have when it comes to claiming and enforcing child maintenance orders
If a maintenance order has been made, and a parent against whom the order was made does not comply with its provisions, then the law would step in. A parent having primary care can follow the civil route and attach the other parent’s salary, property etc. Or the criminal route can be followed where the other parent faces possible imprisonment. However, what does a parent do, if a Maintenance Order has been granted, and he or she is not happy with it? This is what this article deals with – Appealing maintenance orders granted by the Maintenance Court. We are not dealing with Maintenance Orders that were granted by the Divorce Court (High Court or Magistrates’ Court).
How are Maintenance Orders made in the maintenance court?
A parent would apply for a maintenance order at the Maintenance Court. The court would then notify the other parent to appear in the Maintenance Court. Various Maintenance Courts follow different procedures in notifying parents. Some use subpoenas, other send letters, and others use emails. Thereafter, the parents would first meet with a maintenance officer to discuss the complaint and an enquiry is held. The parents would present all their income and expenses and the maintenance officer would try to resolve the matter. Resolving the matter would be first prize for both parents. However, matters are not always resolved at this first sitting. Therefore, in short, Maintenance Orders are made as follows:
The parties agree on a maintenance order with the assistance of a Maintenance Officer, and it is made an order of Court. A consent form is therefore signed and made an order of Court. Everyone is happy; or
The parties cannot agree on a maintenance order, and the court decides what the terms of the order should be. This is the long route, but necessary if one or both parties are being unreasonable.
The parent is unhappy with the maintenance court’s decision
If a parent is not happy with the order the court made, then he or she may appeal the Maintenance Order. Basically, what this means, is that a higher court would decide whether the maintenance court made the correct decision. In this case, the higher court would be the High Court. If the maintenance matter was heard in Cape Town, it would then be the Western Cape High Court. As you would see below, the procedure is cumbersome. The entire court record would have to be typed out and read by the High Court Judges.
Procedures to follow when wanting to appeal a Maintenance Court decision
When appealing a maintenance court decision, one needs to look at the Magistrates’ Court Rules, as well as the High Court Rules. This is so as the maintenance matter was heard by a magistrate and the court hearing the appeal is the High Court. We inserted both sets of rules below which you can follow should you wish to appeal a maintenance court decision.
Magistrates’ Court Rule on Appeals
Appeals in civil cases
(1) Upon a request in writing by any party within 10 days after judgment and before noting an appeal the judicial officer shall within 15 days hand to the registrar or clerk of the court a judgment in writing which shall become part of the record showing-
the facts he or she found to be proved; and
his or her reasons for judgment.
(2) The registrar or clerk of the court shall on receipt from the judicial officer of a judgment in writing supply to the party applying therefor a copy of such judgment and shall endorse on the original minutes of record the date on which the copy of such judgment was so supplied. (3) An appeal may be noted within 20 days after the date of a judgment appealed against or within 20 days after the registrar or clerk of the court has supplied a copy of the judgment in writing to the party applying therefor, whichever period shall be the longer. (4) An appeal shall be noted by the delivery of notice, and, unless the court of appeal shall otherwise order, by giving security for the respondent’s costs of appeal to the amount of R1000: Provided that no security shall be required from the State or, unless the court of appeal otherwise orders, from a person to whom legal aid is rendered by a statutorily established legal aid board. (5) Money paid into court under subrule (4) and outstanding for more than three years, may be paid into the State Revenue Fund, after three months’ notice of such intention in writing has been given to the parties concerned, whereafter the parties concerned may apply for a refund of the amount paid into the said Fund. (6) A cross-appeal shall be noted by the delivery of notice within 10 days after the delivery of the notice of appeal. (7) A notice of appeal or cross-appeal shall state- (a) whether the whole or part only of the judgment is appealed against, and if part only, then what part; and (b) the grounds of appeal, specifying the findings of fact or rulings of law appealed against. (8) (a) Upon the delivery of a notice of appeal the relevant judicial officer shall within 15 days thereafter hand to the registrar or clerk of the court a statement in writing showing (so far as may be necessary having regard to any judgment in writing already handed in by him or her)-
the facts he or she found to be proved;
the grounds upon which he or she arrived at any finding of fact specified in the notice of appeal as appealed against; and
his or her reasons for any ruling of law or for the admission or rejection of any evidence so specified as appealed against.
(b) A statement referred to in paragraph (a) shall become part of the record. (c) This rule shall also, so far as may be necessary, apply to a cross-appeal. (9) A party noting an appeal or a cross-appeal shall prosecute the same within such time as may be prescribed by rule of the court of appeal and, in default of such prosecution, the appeal or cross-appeal shall be deemed to have lapsed, unless the court of appeal shall see fit to make an order to the contrary. (10) Subject to rule 50 of the Rules Regulating the Conduct of the Proceedings of the Several Provincial and Local Divisions of the High Court of South Africa, the registrar or clerk of the court shall, within 15 days after he or she receives notice that an appeal has been set down for hearing, transmit to the registrar of the court of appeal the record in the action duly certified. (11) (a) A respondent desiring to abandon the whole or any part of a judgment appealed against may do so by the delivery of a notice in writing stating whether he or she abandons the whole, or if part only, what part of such judgment. (b) Every notice of abandonment in terms of paragraph (a) shall become part of the record. (12) Where the parties agree in terms of section 82 of the Act that the decision of the court shall be final, either party may lodge the memorandum of such agreement with the registrar or the clerk of the court, and such memorandum shall thereupon become part of the record in the action or matter. Now let us refer you to the relevant sections of the High Court Rules.
High Court Rule in relation to Appeals from the Maintenance Court
50 Civil Appeals from Magistrates’ Courts (1) An appeal to the court against the decision of a magistrate in a civil matter shall be prosecuted within 60 days after the noting of such appeal, and unless so prosecuted it shall be deemed to have lapsed. (2) The prosecution of an appeal shall ipso facto operate as the prosecution of any cross-appeal which has been duly noted. (3) If a cross-appeal has been noted, and the appeal lapses, the cross-appeal shall also lapse, unless application for a date of hearing for such cross-appeal is made to the registrar within twenty days after the date of the lapse of such appeal. (4) (a) The appellant shall, within 40 days of noting the appeal, apply to the registrar in writing and with notice to all other parties for the assignment of a date for the hearing of the appeal and shall at the same time make available to the registrar in writing his full residential and postal addresses and the address of his attorney if he is represented. (b) In the absence of such an application by the appellant, the respondent may at any time before the expiry of the period of 60 days referred to in subrule (1) apply for a date of hearing in like manner. (c) Upon receipt of such an application from appellant or respondent, the appeal shall be deemed to have been duly prosecuted. (5) (a) Upon receipt of such application, the registrar shall forthwith assign a date of hearing, which date shall be at least 40 days after the receipt of the said application, unless all parties consent in writing to an earlier date: Provided that the registrar shall not assign a date of hearing until the provisions of subrule (7) (a), (b), and (c) have been duly complied with. (b) The registrar shall forthwith give the applicant written notice of the date of hearing, whereupon the applicant shall forthwith deliver a notice of set down and in writing give notice thereof to the clerk of the court from which the appeal emanated. (6) A notice of set down of a pending appeal shall ipso facto operate as a set down of any cross-appeal and vice versa. (7) (a) The applicant shall simultaneously with the lodging of the application for a date for the hearing of the appeal referred to in subrule (4) lodge with the registrar two copies of the record: Provided that where such an appeal is to be heard by more than two judges, the applicant shall, upon the request of the registrar, lodge a further copy of the record for each additional judge. (b) Such copies shall be clearly typed on foolscap paper in double spacing, and the pages thereof shall be consecutively numbered and as from second January 1968, such copies shall be so typed on A4 standard paper referred to in rule 62 (2) or on foolscap paper and after expiration of a period of twelve months from the aforesaid date on such A4 standard paper only. In addition every tenth line on each page shall be numbered. (c) The record shall contain a correct and complete copy of the pleadings, evidence and all documents necessary for the hearing of the appeal, together with an index thereof, and the copies lodged with the registrar shall be certified as correct by the attorney or party lodging the same or the person who prepared the record. (d) The party lodging the copies of the record shall not less than fifteen days prior to the date of the hearing of the appeal also furnish each of the other parties with two copies thereof, certified as aforesaid. (8) (a) Save in so far as these affect the merits of an appeal, subpoenas, notices of trial, consents to postponements, schedules of documents, notices to produce or inspect, and other documents of a formal nature shall be omitted from the copies of the record prepared in terms of the aforegoing subrule. A list thereof shall be included in the record. (b) (i) With the written consent of the parties any exhibit or other portion of the record which has no bearing on the point in issue on appeal may be omitted from the record. (ii) If a portion has been so omitted from the record, the written consent signed by or on behalf of the parties and noting the omission shall be filed, together with the incomplete record, with the Registrar. (iii) Notwithstanding the provisions of subparagraphs (i) and (ii) the court hearing the appeal may at any time request the complete original record and take cognisance of everything appearing therein. (c) When an appeal is to be decided exclusively on a point of law, the parties may agree to submit such appeal to the court in the form of a special case, as referred to in rule 33 of the Rules, in which event copies may be submitted to the court of such portions only of the record which in the opinion of the parties may be necessary for a proper decision of the appeal: Provided that the court hearing the appeal may request that the entire original record of the case be placed before the court. (9) Not less than fifteen days before the appeal is heard the appellant shall deliver one copy of 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 less than ten days before the appeal is heard the respondent shall deliver a similar statement. Three additional copies shall be lodged with the registrar in each case. (10) 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.
Final Words on Appeals in Maintenance Court Matters
It often happens, when a marriage has irretrievably broken down, the parties are in agreement that they have to divorce. Furthermore, the parties came to an agreement regarding the propriety aspects of the marriage, care and contact of the minor children, as well as who should pay for the cost in relation to the divorce. If all the latter has been agreed upon, there is no need for the parties to wait many months to get divorced. What this article deals with is a real-life scenario where the marriage between a couple would be dissolved in the shortest possible time. In this case, three (3) days from the date of meeting their lawyer. If you don’t feel like reading this entire article, scroll down to the bottom for an illustration of a divorce finalised in 3 (three) days. Furthermore, it may become necessary for there to be a quick divorce. One such reason could be that a party is only visiting South Africa for a very short while and wants to resolve issues expeditiously. This would especially be so if the parties lived separately for a long time despite being married. Before we proceed with exploring and unpacking the question this article relates to, we will first have to look at certain basic requirements in order for parties to get divorced. This relates to the court’s jurisdiction, as well as the requirement that a marriage has broken down irretrievably. Another one is that they should be married. I guess we all knew that. [ninja_form id=72]
The jurisdiction of the divorce court
It does not mean that because you got married in a specific province or town that the Court situated there has the authority to divorce you. For example, if you married in Cape Town, and relocated to Johannesburg, and live there for quite some time, then Cape Town Court will not necessarily have the jurisdiction to divorce you. The same would apply should the parties have married in Johannesburg and relocated to the United States of America, and are domiciled there. Should they wish to get divorced, they cannot get divorced in Johannesburg. This is so as the Johannesburg Court will not have jurisdiction to divorce this specific couple. Now, what determines jurisdiction? Clearly, it is not the fact that you got married in the Court’s area of jurisdiction. Let’s look at the law.
The Divorce Act
Section 2 of the Divorce Act 70 of 1979 states the following: “A court shall have jurisdiction in a divorce action if the parties are or either of the parties is-
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 have or has been ordinarily resident in the Republic for a period of not less than one year immediately prior to that date.
Well, there you have it. It does not mean that if you got married within the area of jurisdiction of the court, that automatically, that Court would have the jurisdiction to divorce you. You or your spouse should at least be domiciled, or resided within that honorable court’s jurisdiction for a specific period. When we refer to domicile, we basically mean that you intend the specific location to be your permanent home. This is a simple definition. Now let us move on to the second issue. That is the irretrievable breakdown of the marriage.
Irretrievable breakdown of the marriage between the parties
It goes without saying, a court will not divorce a couple who is happily married. There has to be some problem in the marriage. Now let’s go straight into the law and find out when, or under what circumstances a Court of law may divorce you in South Africa.
The Divorce Act
According to section 4(1) of the Divorce Act: “A court may grant a decree of divorce on the ground of irretrievable breakdown of a marriage if it is satisfied that the marriage relationship between the parties to the marriage has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between them.” Section 4(3) of the Divorce Act then states: “If it appears to the court that there is a reasonable possibility that the parties may become reconciled through marriage counsel, treatment or reflection, the court may postpone the proceedings in order that the parties may attempt a reconciliation.” Considering the latter law, it is clear that the marriage should have broken down irretrievably, in other words, it cannot be saved. Furthermore, it should not appear to the court that reconciliation is possible. So moving forward, presuming that the court has jurisdiction and the marriage has irretrievably broken down, we can now deal with the aspect of a quick divorce. That is why you are reading this article? We shall start with what is required in order to institute divorce proceedings.
The summons commencing the divorce action
As would be obvious from the foregoing, only a court of law can dissolve a marriage. Therefore, one needs to follow the legal processes in place in order for a court to deal with your matter. In the case of a divorce, the process starts with the issuing of a summons. Basically, this is a document outlining who all the parties are and what the Plaintiff (the person instituting the divorce proceedings) wants from the court. The summons would be signed by the Court Registrar who would direct the Sherriff of the Court to serve it on the Defendant (the other party to the divorce). It would also have attached to it, a particulars of claim, comprising of certain relevant information in order for the court and the other party to know what the reasons for the relief sought, or divorce is. This we deal with next.
The Particulars of Claim
In the case of a divorce summons, you will state who the parties are, when they got married, details of the minor children involved, and reasons for the breakdown of the marriage. With regard to the reasons for the breakdown of the marriage, you will state that for example, there is no longer any love and affection between the parties, and both parties wish to get divorced. The latter information is stated in a document, called “particulars of claim”. This document is attached to the summons. The particulars of claim will then also outline the relief sought. For example, it will first state that you wish for a decree of divorce, and further what you wish in relation to care and contact in relation to the minor children, child maintenance, personal maintenance, the division of the joint estate, and who pays the legal fees. It is also wise for the parties to enter into a consent paper or settlement agreement. This we deal with next.
The Consent Paper or Settlement Agreement
You should stipulate in the particulars of claim exactly what you wish the court to grant you. However, what is a good idea, if the divorce is undefended, to enter into a consent paper or settlement agreement. This document basically outlines what the parties agree upon in relation to the divorce. It deals with child custody, maintenance, and the division of the joint estate if it applies. The parties would sign the consent paper or settlement agreement and it would be made an order of court should the court so grant it. Therefore, if you follow this route, the court would basically make an order stating that it grants a decree of divorce, incorporating the terms of the consent paper or settlement agreement. The consent paper or settlement agreement may be entered into between the parties before divorce proceedings are instituted or after. If it is done before divorce proceedings are instituted, it is usually attached to the summons. Your prayers in your particulars of claim would basically be that you ask for a decree of divorce, incorporating the terms of the consent paper attached thereto.
What happens after the summons has been issued?
Let us presume that the summons, particulars of claim and consent paper have been drafted, and all documents have been signed. It should then be taken to a court to be issued and a case number is allocated to it. The next step would be for the summons with all the relevant documents attached thereto to be served on the defendant. This would be the case even though the divorce is agreed upon. Service of the divorce documents on the defendant would have to be done by the office of the sheriff. In other words, the sheriff would give a copy of the divorce papers to the other party, in this case, the defendant. A sheriff then provides a document called, “return of service”. Basically, it tells the court that he served the documents on the defendant. The defendant would then have a period of ten (10) working days to decide whether or not to defend the divorce. This is stated in the summons. A reason for defending would be that he or she opposes the divorce, or don’t believe the contact arrangements are in the children’s best interests. Once the ten (10) working days have passed, the divorce may be set down for hearing.
How quick can the divorce be finalised
Continuing with the example of a friendly divorce, once the ten (10) days have lapsed, and the defendant did not file a notice of his intention to defend the divorce action, the divorce can proceed on an undefended basis. The Plaintiff or the person who instituted the divorce proceedings may then set the divorce matter down for hearing on an undefended basis. If the divorce was instituted in the Western Cape High Court, it could be set-down within three (3) days. For example, if the ten (10) days have expired, The Plaintiff may file his notice of set-down the Monday before noon with the Registrar, to be heard on Wednesday. This is explained at the end of this article.
Waiving the ten (10) ten days waiting period – The waiver
This is where this article becomes interesting. It is also possible under certain circumstances, for a defendant to file a waiver. Basically, the defendant would file a document stating that he waives his right to ten (10) days to decide whether or not he wants to defend the divorce. If a waiver is filed, and the court has no issue therewith, then the divorce can take place much sooner than ten (10) days. This we explain a bit more next.
Demonstrating a quick divorce
Considering the above and, ensuring that all legal processes are in place, a divorce can be finalised very quickly and in certain circumstances, within a few days. As long as the court has jurisdiction to hear the matter and the marriage has broken down irretrievably, there is no reason why the divorce can’t take a maximum period of four weeks to finalise. If, however, the divorce is urgent and undefended it is possible for the defendant to file a waiver advising the court that he has no issue with a divorce taking place within the ten (10) days given to him. His reason for this could also be that he and the Plaintiff entered into a Consent Paper and wants the divorce as well. In this case, the divorce could take three (3) days. This would apply in the following hypothetical example:
Monday:
Meet with the fast and efficient lawyer (or give us a call to refer you to one);
Draft the summons, particulars, consent paper;
Sign the consent paper and issue the summons;
Serve the summons on the defendant by the sheriff;
The defendant signs a waiver;
File the consent paper at the office of the family advocate for endorsement; and
Ensure the court file is in order and set the matter down before noon.
Tuesday:
Collect the endorsed consent paper from the office of the Family Advocate.
Meet with your lawyer, or one of our recommended lawyers, to prepare you for court the next day.