A contested or opposed divorce occurs when one or both parties to the divorce cannot come to an agreement on the division of the assets, if there are minor children involved, custody over same and the amount of spousal and/or child maintenance which will be paid. In such cases, it is usually left for the courts to settle the dispute. Contested/opposed divorce matters can be lengthy and highly costly for both parties, not forgetting to mention the trauma that may be experienced by the families involved. A party who is financially weaker during the divorce proceedings may apply to court for a Rule 43 order so as to enable them (the applicant) to obtain a contribution to costs against the other spouse. This will enable the less financially privileged spouse to continue with the litigation proceedings.

Unopposed (uncontested) divorce

Should one of the parties to the marriage refuse to ‘sign’ the summons or refuse to agree to the divorce as a whole, the spouse (plaintiff) who seeks divorce can unilaterally obtain a divorce order from the court without the consent of the other spouse (defendant). Section 3 read with section 4 of the Divorce Act 7 of 1979 stipulates that the court may grant a divorce order provided –

• The plaintiff can prove to a court that he/she and the defendant’s relationship has broken down to such a degree that there is no possibility of reconciliation;
• The plaintiff and defendant can no longer live together as husband and wife/spouses and have not lived as such continuously for at least a year;
• One of the spouses is mentally ill or continuously unconscious;
• One of the spouses is a declared by an order of court as a habitual criminal and is serving sentence in a prison during the subsistence of the marriage.

Contested/opposed divorce

In a contested/opposed divorce, the Regional Magistrate Court and High Court have jurisdiction in dealing with divorce litigation. The spouse seeking divorce (plaintiff) commences divorce proceedings by serving summons and particulars of claim on the other spouse (defendant). The summons is served personally to the defendant by the Sheriff of the court. The summons and particulars of claim include, details of the spouses, reasons for the breakdown of the marriage, spousal and/or child maintenance claim, custody, and rights of the child/ren (if applicable) and division of the assets.

After the summons are served, should the defendant disagree with any of the stipulated terms in the particulars of claim he/she must file a notice of intention to defend within 10 days of receiving the summons. Thereafter, the defendant has 20 days to file his/her plea and counterclaim. In response thereto, the plaintiff must file his/her plea and counterclaim within 15 days of the defendant filing same. After this point, the pleadings are closed and the process of preparing for trial commences. An application for and set down of a trial date is then made to the court. At this stage both parties are required to make discovery all evidence (documents, tape recordings, etc) which are relevant to the issues in dispute. These documents should include, but not limited to –

• Schedules of assets and liabilities.
• Bank statements.
• Proof of the values of pension funds.
• Investments and shares.

Subsequently a pre-trial conference is held where the issues in dispute are narrowed down to determine whether a settlement is possible. The trial then commences. Depending on the level of cooperation and attitudes adopted by the parties to the matter, the length of the trial and divorce proceedings may either be as short as three months or as long as three years. After the trial is concluded, the court makes and judgment and issues a divorce order with the terms of the divorce. According to section 7(1) of the Divorce Act, this decision may include responsibility over the care of the children (if any) and the division of the assets. At any stage prior to the handing down of the judgment by the court, the parties may decide to reach a settlement or decide to use the services of a mediator to reach a settlement agreement.

Mediation

Courts are always inundated with matters; therefore, it is no surprise that they stress the importance of mediation especially in divorce matters. Courts frown upon parties who refuse mediation and even go as far as awarding cost orders against the offending party and the party’s attorney in instances where the attorney failed to refer the parties to mediation before seeking court intervention. This was the case in MB v NB [2009] ZAGPJHC 76, 2010 (3) SA 220 (GSJ). In casu, the court opined that the parties could have benefited from a mediation. The court held that “[o]ne of the matters that must be considered in a pre-trial conference is whether the dispute should be referred for possible settlement by mediation. In the present case the legal representatives of the parties had no hesitation in answering this question in the negative.” As a result, the court limited the fees which the attorneys could charge because ‘the failure of the attorneys to send the matter to mediation at an early stage should be visited by the court’s displeasure.”

Section 33(2) read with 33(5) of the Children’s Act 38 of 2005 stipulates that upon or after divorce the parties may not, as their first resort, approach the court for the resolution of their parenting disputes. The objective of these sections is to encourage the parties to seek the intervention of a mediator or neutral third party. Section 4 of the Mediation in Certain Divorce Matters Act 24 of 1987 provides that before a divorce order is granted, the parties may be ordered by the court to submit to limited court-connected mediation by the office of the family advocate.

Mediation is an alternative method of dispute resolution whereby an impartial third party helps the parties to resolve their disagreements and reach terms they can settle on. Unlike the courts, the mediator has no decision-making powers. However, he/she may be able to facilitate a meaningful negotiation between the parties. Mediation is a cost-effective method to achieving the same goal as the courts, which is an agreement that will be fair to both parties.

Brassey AJ in MB v NB emphasised the benefits of mediation by holding that –

Mediation can produce remarkable results in the most unpropitious of circumstances, especially when conducted by one of the several hundred people in this country who have been trained in the process. The success of the process lies in its very nature. Unlike settlement negotiations between legal advisers, in themselves frequently fruitful, the process is conducted by an independent expert who can, under conditions of the strictest confidentiality, isolate underlying interests, use the information to identify common ground and, by drawing on his or her own legal and other knowledge, sensitively encourage an evaluation of the prospects of success in the litigation and an appreciation of the costs and practical consequences of continued litigation, particularly if the case is a loser.

Mediation offers more than just a less costly avenue to dispute resolution but also fashions a conducive and suitable atmosphere for soothing the often-high emotions of the parties, which can be exacerbated by a stressful adversarial legal process. Converse to the results of a court  intervention, mediation allows the parties to have control of the outcome of the negotiations, whereas judgment from the court is left to the presiding officer to decide the outcome. It must be noted that mediation as an alternative way to reach resolution may not be suitable for situations. This is the case where there is a power imbalance between the parties in the relationship or there has been any type of abuse or drug/alcohol use.

Conclusion

Divorce is a difficult process regardless of which avenue is used to reach its conclusion. However, the South African legal system has provided a myriad of ways to reach a successful resolution while reducing costs and the stress that generally accompany litigation. Spouses who are considering a divorce are therefore encouraged to consult with their legal representatives in order to reach an avenue which provides favourable conditions for each party involved.

Author: Samkelisiwe Mbuthuma (LLB, LLM Ukzn)

Sister In Law legal intern

@snmbuthuma on Instagram