Divorce: When is it Unopposed?

Divorce: When is it Unopposed?

Divorce is a difficult and trying time for all who go through it. Whether your divorce is Opposed or Unopposed may affect the costs as well as duration of your divorce.


Divorces may be Opposed (meaning the parties cannot agree on any or all the aspects of a divorce) or Unopposed. Please see our blog on Opposed divorces at https://www.hamelattorneys.co.za/divorce-when-is-it-opposed/


Divorces may be Unopposed when the parties have agreed to every aspect of their divorce including, amongst others, custody of the children (when applicable), visitation schedules of the children (when applicable), maintenance of the children/spouse (if applicable), division of assets (being the goods you own) and division of the debts (who will pay which debts).


A question that is often encountered in our practice is what happens when spouses can’t agree on custody (care and contact) arrangements. For more information on this please see our blog at https://www.hamelattorneys.co.za/cant-agree-on-custody-what-now/


Divorce Attorneys are exceptionally important to visit, to explain the process, explain your rights and duties as well as estimations as to time and funds. For more information on what to expect from your attorney during a divorce, please see our blog on What to Expect from Your Divorce Attorney at https://www.hamelattorneys.co.za/divorce-how-do-i…rust-my-attorney/


Your Attorney should enquire on whether you have a pre-nup, what your pre-nup means, whether it is enforceable and a way forward given the attorneys opinion on your pre-nup (if any). For more information regarding Pre-Nuptual Agreements, please see our blog https://www.hamelattorneys.co.za/pre-nups-what-to-consider/


Divorces are often decided on the pre-nup (if any), the assets, the debts, the parties needs, the children’s needs and the parties affordability.


Divorces must always be done via Summons to the other party and a Particulars of Claim therewith. In the case of an Unopposed Divorce, the Particulars of Claim would be a shorter version than an Opposed divorce and will attach the Settlement Agreement, asking the Court to make such Settlement Agreement an Order of Court.


Divorces must still, even when Unopposed, comply with certain formalities of the Summons as well as the format of the Settlement Agreement. In the event of children, the Settlement Agreement must be endorsed by the Family Advocate. Only in certain limited circumstances would a Court entertain a divorce where the Family Advocate has failed to endorse the Settlement Agreement. For more information on the Family Advocate, what they do and their purpose please see our blog at https://www.hamelattorneys.co.za/family-advocate-who-are-they-and-what-do-they-do/


The Settlement Agreement is of paramount importance as not only must it comply with certain formalities, but must also do its best to be as clear a thorough as possible in order to avoid, as far as possible, future litigation. Eg. if a Settlement Agreement stated that one of the spouses must settle the “car” debt and it transpired later that there were car debts that spouse was unaware of at the time of entering into the Settlement Agreement- further litigation (court process) would likely follow.


Unfortunately, a Settlement cannot be forced on the other spouse. If spouses cannot agree to terms or refuse to even entertain Settlement talks and negotiations, there is unfortunately no option except to issue an “Opposed” Divorce Summons.


A question which is often asked is whether your spouse can refuse to divorce and thus hold you over a barrel or force you to stay married. Please see our blog on when one party refuses to divorce at https://www.hamelattorneys.co.za/spouse-refuses-to-divorce-can-i-make-him-her/


Ensure that you obtain adequate and proper legal advice prior to entering into Settlement Agreements, Settlement negotiations or issue Summons.


Contact us today to set up your consultation at https://www.hamelattorneys.co.za/contact/ or on 012 754 3385. Our consultations may be done in person (after lock-down) or at any time, with set appointment online via Skype.

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