Your husband just up and left. He doesn’t take your calls and you’re pretty much stuck. Do you just stay married? Can he/she refuse?
This is a common question we encounter in our practice.
Firstly, your spouse cannot refuse a divorce. If you wish to divorce, it is your right to do so. However, the terms of the divorce are a different matter altogether.
If you and your spouse are able to agree on division of assets, payment of debts and custody of the children, you may have an Unopposed Divorce which means that you approach the Court with your Settlement Agreement and request the Settlement Agreement to be made an Order of Court. There is however a process to this, that must be followed by law, such as issuing a summons and so forth as only a Court of Law can divorce you. Your attorney may of course assist with these formalities and explain the process to you. For more information about Unopposed Divorces, please see our blog at https://www.hamelattorneys.co.za/divorce-when-is-it-unopposed/
However, should you be unable to agree on the terms of the divorce, than the only way forward is an Opposed Divorce. This too, must comply with the legal process as only a Court of law may divorce you. Your attorney will assist in issuing the summons and providing advice on division of assets, custody of your children etc. For more information about Opposed Divorces, please see our blog https://www.hamelattorneys.co.za/divorce-when-is-it-opposed/
The important thing to remember is that your husband or wife cannot refuse a divorce and in doing so effectively force you to stay married. You may approach your attorney, if you feel that you no longer love each other or have irreconcilable differences, which make staying married intolerable to you.
It is very important to obtain adequate legal advice on whether your prenup is enforceable, how it may affect the divorce itself as well as the consequences thereof. For more information about pre-nups (antenuptial or prenuptial agreements) please see our blog at https://www.hamelattorneys.co.za/pre-nups-what-to-consider/
You should also ensure that your first meeting or consultation with your attorney provides you with answers to your questions and that you can refer back to later, as you proceed with your divorce. For more information on how to get the most value from your first consultation please see our blog at https://www.hamelattorneys.co.za/divorce-how-do-i-know-i-can-trust-my-attorney/
Whenever children are born of a marriage, the Family Advocate becomes involved, either in the capacity of endorsing (approving) your Settlement Agreement or to investigate the best interests of the child or children, when applicable. Your attorney may also advise you on the role of the Family Advocate and how the procedure in a divorce, where children are born of the marriage, is dealt with. For more information on the Family Advocate feel free to visit our blog at https://www.hamelattorneys.co.za/family-advocate-who-are-they-and-what-do-they-do/
Divorce is a confusing, trying and difficult time for all those involved and as such it is very important to get adequate legal advice on your rights, duties as well as the procedure and, where applicable, how the process differs when children are involved.
You would also wish to obtain adequate information on maintenance, whether you are entitled to it, how much you may generally expect as well as options to go about obtaining maintenance for you and/or your children, while the divorce process is still pending. Opposed divorces may take a long time to get to trial and many procedures must be followed prior to the Hearing your matter by the Courts. Thus, your options regarding maintenance while the main action (the divorce itself) is still pending, or judgment has not yet been handed down, may be very important for both you and your children (if applicable).
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.