When a divorce is finalised a couple's marriage is terminated and with it also the legal obligations and responsibilities of the marriage. When filing for divorce, parties will have to consider a number of things. They will have to determine how their property will be divided and whether or not one of the parties is entitled to spousal maintenance. If the couple has minor children they will have to agree to the contact, care and maintenance of the children. Some divorces are more complicated than others and there are two distinctly different types of divorce in South Africa: contested and uncontested divorce. 

Uncontested Divorce

An uncontested divorce is only feasible when both parties can come to an agreement on the divorce terms. This is usually only possible when a married couple is able to bring their relationship to an end in an agreeable manner. This is because a fair amount of negotiation is usually required to settle on all the terms of the divorce. In cases where the couple entered into a marriage contract, there is less room for disagreement to arise. In other cases, parties can negotiate the division of assets and reach an agreement regarding their parental responsibilities and rights without the need for a trial. It is important to note that the parties can agree to any terms that are fair and reasonable in the circumstances, even if it is not in accordance with the prevailing legislation. 

When looking at the different types of divorce, an uncontested divorce is a relatively quick and simple option that can be concluded within a few weeks. This also makes it a less expensive option as parties do not have to pay extensive litigation costs. A divorce attorney can be appointed to prepare a settlement agreement that meets the couples’ specifications and is also in accordance with the court’s requirements. This document is then signed by both spouses and forms the basis of the divorce order.
Contested Divorce

The different types of divorce are essentially classified according to the process that leads to the finalisation of the divorce. If the parties are unable to reach a settlement agreement between themselves the separation is seen as a contested divorce. This is usually an expensive process that can take months or even years to conclude and each party will have to employ their own legal representation. Those issues that the couple cannot settle between themselves are litigated in court, based on the available evidence and legislation, after which the court makes a ruling on the terms of the divorce. With the help of mediation and negotiations, many contested divorces are settled before they reach the courts. This is often a favourable outcome as it reduces the overall cost of the process by settling out of court. 

In South Africa, you are entitled to a divorce if there has been an irretrievable breakdown of the marriage and the relationship and you do not require a spouse’s consent to initiate divorce proceedings. Contact Cawood Attorneys if you are in need of legal representation during your divorce. Our team of professional family attorneys will be with you throughout negotiations to answer any of your questions and ensure that you stay informed on any developments.

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