Divorce & R43 procedures

DIVORCE PROCEDURE

Client consult with attorney

Draft combined summons (Annexure “A”& Statistic form)

Summons issued at Registrars office

Summons personally served by Sheriff

On receipt of Summons the Defendant can either:

CONSENT TO THE DIVORCE                                           OPPOSE THE DIVORCE

*can do nothing (judgment by Default)/                                    *must file and serve a Notice                  

Enter into a settlement agreement                                             of Intention to defend the action within 10/30 days after receipt of the summons.

                                                Notice of Bar (to compel)

* After filing same the Defendant must file a Plea & Counterclaim within 10 days.

*Plaintiff can reply to Defendant’s counterclaim by filing a Plea to Counterclaim

* Pleadings close

* Apply for trial date on opposed roll

Pre-trial phase                                           Trial phase                   Judgment

*File and serve:                                         *Lead evidence           *Court’s ruling

- Discovery affidavit                                 *Court will consider

- Notice to Inspect                                                written and viva voce

- Notice to Deliver                                    evidence

- Notice to Produce

*Request further particulars

*Issue and serve subpoenas

*Attend R37 conference to determine issues in dispute.

R43 APPLICATION:

• Can only be issued after divorce action has been instituted and can be brought anytime from date of issue of the divorce action until divorce is finalized.

• Either Plaintiff /Defendant in divorce action can apply for a R43 application

• R43 is a High court application

• In the North Eastern divorce Court one can bring a R28 application

• A R43 application is an urgent application for interim relief pending the finalization of the divorce action.

• Either party may request a R43 order to govern :

-          Maintenance in respect of child/ren

-          Spousal maintenance

-          Contribution towards legal costs

-          Arrangements in respect of contact rights/care giving/guardianship.

• Once the divorce is finalized the R43 order will automatically terminate.

PROCEDURE

Either Plaintiff /Defendant will consult with attorney

Attorney will draft a R43 Notice as well as a Supporting affidavit and attend to file   same at Registrars office and serve the application on the Respondent

The R43 will be issue with its own case number and is therefore completely separate form the divorce action.

On receipt of the application the Respondent can either:

Consent:                                                                            Oppose the Application:

* Enter into a interim agreement /do nothing                   * File and serve a Notice 

(Order by default)                                                             opposing the application

* File and serve an opposing affidavit

Matter will be set down on urgent basis.

Court will consider written evidence only.