In an uncontested divorce, you and your spouse work together to agree on the terms of your divorce. You will both consult with the same attorney, who will be unbiased and impartial. There is no formal trial, and only one party, known as the plaintiff, appears in court.
In this type of divorce, the parties agree prior to the divorce on how to divide their assets and, if there are children involved, which parent will become the parent of primary residence and which will be the parent of alternate residence. The attorney will then draft a settlement agreement, also known as a consent paper, to be signed by both spouses, as well as a parenting plan (if there are children involved).
An uncontested divorce is most definitely the least expensive type of divorce, and it can be finalised in as little as four weeks.
A default divorce is a type of uncontested divorce. This works when your spouse may not respond at all to the divorce. If your spouse does not respond, a court will grant a divorce by default if you serve a divorce summons on him/her. In a default divorce, the plaintiff prepares a summons setting out his/her claims with or without the help of an attorney.
The summons specifies the number of days in which the defendant has to file a notice of intention to defend, in other words contest the divorce (10 days when the parties live within the jurisdiction of the court or 20 days if they live in different provinces). If the defendant does not answer via notice of defence within the allotted time, the plaintiff may approach the court to enrol the divorce on the court roll and conclude the divorce on the defendant’s default.
While default divorces do go ahead, it may be better to ask your spouse why they haven’t responded, as they could seek to delay the process later on if they claim the documents weren’t delivered properly or have a justifiable excuse for their lack of response.
Doing your own divorce is one of the routes to take when your divorce is uncontested. DIY divorces are concluded without the help of an attorney and are therefore a much cheaper option. Undergoing divorce without an attorney can be done in two ways:
- Your local magistrate’s court can provide you with the necessary forms and give you guidance on how to conclude your own divorce without legal representation.
- If you want to avoid waiting in a queue, you can use an online divorce service to draft your divorce papers and terminate your divorce. This involves simply filling out a questionnaire and paying the fees.
- DIY divorces can work, but when children are involved, or when there are substantial assets, or pension funds, it may be better to rather seek the assistance of an attorney with family law experience. Alternatively, the couple could involve a third-party mediator to ensure that a comprehensive settlement agreement and parenting plan can be put in place.
See related resource: Understanding unopposed divorce in South Africa.