What Are The Important Differences Between a Contested Divorce and an Uncontested Divorce in South Africa?
The last thing on your mind when you marry someone is what would happen if your relationship breaks down, resulting in a divorce. Unfortunately, for many couples, divorce becomes an unwanted reality. If you’re considering divorce in South Africa, understanding the essential differences between contested and uncontested divorce is crucial. This knowledge can help you navigate the process more smoothly and make informed decisions.
The most significant differences between a contested and an uncontested divorce in South Africa lie in the complexity, duration, and cost. Contested divorces involve disagreements that require court intervention, while uncontested divorces are resolved amicably between spouses.
If you can understand whether your divorce will be contested or uncontested, it can significantly impact your experience and outcome. To help you better understand the intricacies involved, we’ll explore these two types of divorce in detail, covering everything from procedures to costs. Let’s delve into the specifics to help you determine which path you might be heading down.
Contested Divorce Vs. Uncontested Divorce: The Differences
Although both situations result in a divorce, the path that gets you to the final chapter is vastly different in a contested vs an uncontested divorce. Let’s look at the fundamental differences of what each entails.
What Is A Contested Divorce?
We call a divorce contested when spouses cannot agree on one or more vital issues such as spousal support, division of assets, or child custody. These disagreements necessitate court intervention, where a judge makes final decisions. This type of divorce often involves lengthy legal battles, multiple court appearances, and significant emotional stress.
What Is An Uncontested Divorce?
On the other hand, an uncontested divorce is when both spouses agree on all major issues. This agreement eliminates the need for court intervention, making the process more straightforward and less adversarial. Uncontested divorces are typically faster, less expensive, and less stressful than contested divorces.
Contested Divorce Vs. Uncontested Divorce: Procedures
As mentioned previously, the fundamental differences between these two types of divorce result in differing procedures. Let’s look at the difference in the procedures of a contested vs uncontested divorce.
Contested Divorce Procedure
In a contested divorce, the procedure begins similarly to an uncontested divorce; things start to differ. Let’s look closer at the steps involved:
- Filing the Divorce Petition:
- One of the spouses will go to court and file a divorce petition.
- Serving Divorce Papers:
- The other spouse will then be served with divorce papers and must respond within 10 to 20 days.
- Response to Petition:
- The respondent can either accept or contest the terms outlined in the petition.
- Discovery Process:
- Both parties will then engage in a discovery process to gather evidence, which can take several weeks to months.
- This evidence may include exchanging financial documents, interrogatories, and depositions.
- Mediation Attempts:
- Mediation is often attempted to resolve disputes without going to trial.
- If mediation is successful, a settlement agreement is drafted.
- If mediation fails, the case proceeds to the next step.
- Pre-Trial Motions and Hearings:
- Various pre-trial motions and hearings may be conducted to address interim issues (e.g., temporary custody, spousal support).
- Trial Preparation:
- Both parties and their attorneys will prepare for trial, including compiling evidence, preparing witnesses, and strategising legal arguments.
- Trial:
- The case goes to trial, where each party presents their case before a judge.
- The trial can last several days to weeks, depending on the complexity.
- Judgment:
- The presiding judge makes the final decisions on all contested issues.
- Issuance of Divorce Decree:
- A divorce decree is issued once the judgment is entered, finalising the divorce.
Uncontested Divorce Procedure
For an uncontested divorce, the procedure is much simpler. Let’s look at it step by step:
- Filing the Divorce Petition:
- One of the spouses will go to court and file a divorce petition.
- Drafting Settlement Agreement:
- Both spouses collaborate to draft a settlement agreement outlining the terms of their divorce.
- Review of Agreement:
- The settlement agreement is reviewed by each party’s attorney (if applicable) to ensure it is fair and legally sound.
- Signing the Settlement Agreement:
- Both spouses sign the settlement agreement.
- Submission to Court:
- The signed settlement agreement and divorce petition are submitted to the court for approval.
- Court Review:
- The court reviews the submitted documents to ensure everything is in order and complies with legal standards.
- Issuance of Divorce Decree:
- If the court finds everything in order, the divorce is granted, often within a few weeks to a few months, and a divorce decree is issued without needing a trial.
Contested Divorce Vs. Uncontested Divorce: Specialists
Any divorce could benefit from the help of certain specialists, although the lists of specialists used in contested divorces are typically longer than those of uncontested divorces.
Specialists Often Needed In A Contested Divorce
In a contested divorce, multiple specialists may be involved. These can include:
- Divorce Attorneys
- Child Psychologists
- Financial Advisors
- Forensic Accountants
- Mediators
- Private Investigators
The complexity of contested divorces often requires the expertise of these professionals to address the various disputes that arise.
Specialists You Can Use In An Uncontested Divorce
While an uncontested divorce is more straightforward, consulting with specialists can still be beneficial. A divorce attorney can help draft the settlement agreement to ensure it’s legally sound. Financial advisors can assist with the equitable division of assets, and mediators can facilitate discussions to maintain amicable relations.
Contested Divorce Vs. Uncontested Divorce: Time Frames
As with most aspects surrounding these two types of divorce, their time frames typically differ pretty drastically.
How Long Does A Contested Divorce Typically Take?
Contested divorces can take anywhere from several months to a few years, depending on the complexity of the case and the court’s schedule. The discovery process, mediation attempts, and trial preparation contribute to the extended duration.
How Long Does An Uncontested Divorce Typically Take?
Uncontested divorces are much quicker. Once the spouses have signed and submitted the settlement agreement, the court can approve the divorce within a few weeks to a few months. This swift resolution allows both parties to move on with their lives sooner.
Contested Divorce Vs. Uncontested Divorce: Costs
The costs involved in these two types of divorces differ exponentially, with contested divorces often costing tens of thousands of rands more than uncontested divorces.
How Expensive Is A Contested Divorce?
Contested divorces are considerably more expensive due to the extended legal proceedings and the need for multiple specialists. Legal fees can quickly add up, varying from tens to hundreds of thousands of rands, depending on the duration and complexity of the case. In many cases, attorneys charge by the hour due to the uncertain time frame.
How Expensive Is An Uncontested Divorce?
An uncontested divorce is far more cost-effective. The total cost is generally much lower, with fewer legal fees and a reduced need for specialists. Many uncontested divorces can be completed for a few thousand rands, making them a financially viable option for many couples.
Contested Divorce Vs. Uncontested Divorce: Circumstances
We all hope that in the event of a divorce, we can make decisions regarding our children and assets amicably, but unfortunately, this is sometimes not the case. The circumstances behind a contested and uncontested divorce vary, so let’s look at some of those circumstances.
What Circumstances Can Lead To A Contested Divorce?
Contested divorces often arise from significant disagreements over critical issues such as:
- Child Custody
- Spousal Maintenance
- Asset Division
- Property Rights
- Debt Division
- Pension Fund Rights
Other factors include infidelity, abuse, or a breakdown in communication and trust. A contested divorce becomes necessary when spouses cannot reach a mutual agreement.
What Circumstances Can Lead To An Uncontested Divorce?
Uncontested divorces typically occur when both spouses are willing to negotiate and compromise. Factors such as mutual respect, a desire to avoid prolonged conflict, and prioritising children’s well-being can lead to an uncontested divorce. Open communication and a willingness to work together are essential.
Choosing between a contested and an uncontested divorce depends on your unique situation and ability to reach agreements with your spouse. Understanding the differences in procedures, costs, and time frames will enable you to make an informed decision. Whatever your path, seeking professional legal advice is crucial to protect your rights and interests.
At Burnett Attorneys & Notaries, we understand divorce’s complexities and emotional challenges. Our experienced team is here to guide you through a contested or uncontested divorce with compassion and expertise. We offer personalised legal services to help you achieve the best possible outcome. Contact us today to learn how we can assist you during this difficult time.