FREQUENTLY ASKED QUESTIONS
What are the costs of a divorce?
It is absolutely impossible for us to advise you as to what the costs of your divorce will be, due to the fact that we don’t know exactly what will happen in your divorce and due to the fact that we cannot determine at this stage as to what the nature and extent of the disputes between yourself and your spouse will be. For example:
- The costs of a divorce which your spouse fails to defend or which is settled relatively quickly after it commences are considerably cheaper than the costs of a divorce which proceeds to Court on trial for a number of days.
- The manner in which you are married, the disputes between your spouse and yourself and the nature and extent of the assets and liabilities of yourself and your spouse, can have a material bearing on the costs of your divorce. It may happen that having regard hereto, it is necessary to value your spouse’s shareholding in a company, that to do so, it may be necessary to appoint both a forensic auditor and a sworn valuator and that the costs of such forensic auditor and sworn valuator may be considerable.
What is the procedure that needs to be followed should I want to divorce my spouse?
Generally, all you need to do should you wish to divorce your spouse, is to make an appointment to consult with us, during which consultation we will take full instructions from you and where after, we will proceed to attend to the necessary on your behalf.
Once you have furnished us with instructions to institute the necessary divorce action on your behalf against your spouse, we will proceed to draft your summons for divorce. This summons will then be issued out of the appropriate Court and thereafter forwarded to the relevant Sheriff for service on your spouse. According to this summons, you will be the Plaintiff and your spouse, the Defendant.
Once your summons for divorce has been served on your spouse by the relevant Sheriff, your spouse has two weeks (10 Court days) if your spouse lives within 100 miles of the Court, or three weeks (21 calendar days) if your spouse lives more than 100 miles from the Court, to defend same.
If your spouse fails to defend you said summons for divorce, we will immediately proceed to obtain a date on the uncontested divorce roll for the hearing of your divorce, which date will be within a month or two from the time that application is made for same. On the date of the hearing of this uncontested divorce, you will be required to call at our offices that morning, together with your marriage certificate. We will then take you to Court where an advocate who has been briefed to attend to your matter will consult with you and prepare you for what he or she will ask you in Court. You will then sit in the relevant Court to wait for your matter to be called. When your matter is called, you will be directed to the witness box where you will be sworn in by taking the oath to tell the truth, the whole truth and nothing but the truth. Thereafter, your advocate will lead your evidence, resulting in the appropriate Final Order of Divorce and other appropriate ancillary relief being granted. Once this Order has been granted, you are free to leave. Approximately two weeks later we will receive this typed Court Order from Court, where after you will be furnished with a copy thereof. It may then be necessary to proceed to enforce this Court Order against your spouse.
If your spouse defends your said summons for divorce, he or she then has one month (20 Court days) to answer your said summons. This answer of your summons is called your spouse’s Plea. Your spouse’s Plea, will probably be accompanied by a Counterclaim (which is sometimes also called a Claim in Reconvention). You then have one month (20 Court days) to answer your spouse’s Counterclaim. This answer by you of your spouse’s Counterclaim is called your Plea to the Defendant’s Counterclaim. One then waits three weeks (15 Court days) for the Pleadings to close, where after application is made for the allocation of a trial date for the hearing of the matter.
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How long does a divorce take to finalize?
Primarily, this is dependent upon whether the matter is a defended matter, or not and as to whether the matter is capable of settlement, or not.
Depending on the Court in which your matter is pending, it can take approximately 18 months from the day you initiate divorce proceedings against your spouse, to the trial date for the hearing of your defended divorce action.
Any time between this period of approximately 18 months, your matter can be settled resulting in it taking one to two months for your matter to be finalized on the uncontested divorce roll.
If your spouse fails to defend your divorce action, it would also take one to two months to finalize same on the uncontested divorce roll.
Can you recover the costs of the divorce from my spouse?
In any Court case, you get two different types of costs. These different types of costs are called scales of costs. In this regard, you get:
- costs on the scale as between party and party. These costs are the lowest of the two different scales of costs and are usually the only costs, if any, that are capable of being recovered from your spouse in your divorce case. If a Court grants a costs order in your favour without specifying the scale thereof, such costs order will automatically be for costs on the scale as between party and party.
- costs on the scale as between attorney and own client. These costs include all your costs and no attorney is entitled to charge you more than your costs on the scale as between attorney and own client.
In view hereof, should you succeed in obtaining a costs order against your spouse in your divorce, and should you succeed in recovering these costs from your spouse, the effect hereof would be that your spouse would pay your costs on the scale as between party and party and that you would pay the difference between your costs on the scale as between attorney and own client and the amount paid by your said spouse.
It is important for you to bear in mind that you are always liable for the payment of your entire attorney and own client costs until such time as a portion thereof is recovered from your spouse, if ever.
In order to enable us to attend to the necessary in respect of your divorce, we require you to place us in funds. As a result hereof, when you initially consult with us to institute or defend a divorce action on your behalf, we make an arrangement with you to pay an initial deposit to ourselves.
Lastly, it is important for you to note that we do not, and may not work on the basis that we assist you with your divorce on the basis that no monies whatsoever are paid by you to ourselves in respect thereof and on the basis that we recover our costs from either you or your spouse at the end of the matter.
What particulars and documentation do you require from me in order to enable you to issue summons for divorce against my spouse, on my behalf?
Usually all the particulars which we require in this regard will fall within your knowledge and/or will be in your possession when you consult us to either institute or defend a divorce action on your behalf.
For completeness sake, you may print and complete the client information form on this website to make sure that you have all the required information for this purpose.
Although not always strictly necessary, it would be a good idea to furnish us with copies of the following documentation for us to retain on your file when you first consult us to institute or defend a divorce action on your behalf:
- copy of your identity book;
- copy of your spouse’s identity book;
- original/copy of your marriage certificate;
- copy of the birth certificate/s of your child/ren, if applicable;
- copy of your antenuptial contract, if applicable;
- copy of the deeds of trust in respect of any trusts which may have a bearing on your divorce, if applicable;
- copy of the letters of authority in respect of such trusts, if applicable.