Contested or Opposed Divorced

It is accepted that separation is a time of significant emotional upheaval for every member of a family. During separation and the divorce process feelings of loss and guilt mingle with those of anger and revenge. You may experience extreme emotional and physical distress during the divorce process, which can manifest itself as insomnia, depression, weight loss and panic attacks. Much of this stress can be attributed to factors such as the need to reorganise daily tasks and parental responsibilities, the loss of significant relationships and possessions, and the need to establish a new identity as an individual. Likewise, divorce has a huge impact on the children of separating or divorcing parties, as they might have to change living conditions or schools and endure the acrimony of the separation or divorce, often being torn apart, both emotionally and psychologically, in an acrimonious war between their parents.

Legal procedure
The High Court and the Regional Magistrate’s Court both have jurisdiction to deal with divorce litigation and both have similar procedures which need to be followed prior to a matter going to trial. Divorce proceedings commence when one of the parties serves a summons on the other party, setting out their claim, which can include, over and above a decree of divorce, things such as spousal maintenance, child maintenance, care of and contact with minor children, division of assets, etc. The party commencing proceedings is referred to as the plaintiff and the other party, the defendant. After service of the summons on the defendant, the following procedures are followed:
a) The defendant must file a notice of intention to defend within ten days;
b) The defendant must file his/her plea and counterclaim, if any, 20 days thereafter;
c) The plaintiff must file his/her plea to the counterclaim within 15 days.

At this stage the pleadings are considered closed and the parties can begin the process of preparing for trial. This process can become extremely frustrating in circumstances where one of the parties refuses to cooperate, in which case there are remedies available to the other party, in the form of interlocutory applications to the court. The court rules require both parties to make discovery (i.e. make available to the other side) all documents and tape recordings which are/were in his/her possession or control and which relate to any issue in dispute. Such documents would include schedules of assets and liabilities, bank statements, proof of the values of pension funds, investments and shares, etc. Depending on the complexity of the matter, the attitude adopted the other party, whether or not there are children involved, the issues in dispute and the like, this process can take anywhere from a few months, to several years.

Legal assistance
Try to remember that in divorce there are no “winners”, especially when there are children involved and adopting the “winner takes all” stance seldom leads to satisfying results. That said, whether or not you think your divorce will be easily settled, it is always advisable to obtain legal advice from a family law specialist, who can explain your rights to you and take care of the day to day management of your case in accordance with the rules of court, thereby taking the burden of litigation off your shoulders. This will allow you can focus on your emotional and psychological well-being. Getting divorced can be extremely traumatic, so it is best to find some who is the right “fit” for you, understands your needs and is willing and able to answer any questions you may have.

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