Written By Andrea Hiestermann

3 April 2023

It is no secret that many South African couples are getting divorced nowadays; however, many South Africans are unaware of the divorce process. This often results in bewildered spouses who are uncertain of the course of action to take when a stranger, asserting that they are the Sheriff, arrives at their home to serve a Combined Summons for divorce.

This article explains what a Combined Summons and Particulars of Claim entail, as well as the legal process and the recipient’s way forward upon receipt of the aforementioned.

What is a Combined Summons?

A Combined Summons is a court document that sets out the following:

  1. The names of the individuals involved in the divorce (parties), which will have the terms “Plaintiff” and “Defendant” after the parties’ names to outline who has requested the divorce (the “Plaintiff”) and who will respond to the requested divorce (the “Defendant”).
  2. The respective parties’ details, like their identity numbers and home and work addresses, were available.
  3.  A timeline for when the defendant needs to defend the matter.

 What are the Particulars of the Claim?

The Particulars of Claim are attached to the Combined Summons and set out the specifics of the divorce, such as:

  1. when the marriage took place;
  2. where the marriage took place;
  3. whether the marriage is in the community of property or out of the community of property;
  4. the reasons for the breakdown of the marriage;
  5. whether there are children, which party will have Primary Residence of the children, who will have contact with the children, how contact with the children is outlined, as well as the amount for Child Maintenance;
  6. the amount for Spousal maintenance, if any;
  7. how the estate, which includes all the parties’ assets and liabilities, is to be divided.

How are the Combined Summons and Particulars of the Claim served?

In divorce proceedings, it is a requirement to have the Combined Summons served personally on the Defendant by a Sheriff of the Court. The sheriff can go to the Defendant’s home or work address provided in the Combined Summons to hand over the Combined Summons to the Defendant personally.

The reasons a sheriff needs to serve the Combined Summons are:

  1. it is required by the Divorce Act of 1979;
  2. to ensure that there is no bias; and
  3. to ensure the Combined Summons was served on the defendant personally and that the defendant is aware of the matter.

The sheriff then writes a report called a “return of service”, which states that a copy of the Combined Summons was served on the Defendant personally and that the original Combined Summons will be given back to the Plaintiff along with the return of service.

Once this report has been collected from the sheriff’s offices, it gets added to the bundle of documents that will be given to the court to show that the Combined Summons with the Particulars of Claim were served on the defendant personally.

If the Combined Summons was not served personally, the sheriff would write a “return of non-service”, which indicates the reason(s) why it was not served personally. Failure to serve the Combined Summons on the Defendant personally can be due to several reasons; however, one of the main reasons is that the address provided in the Combined Summons is incorrect, resulting in the need for the Combined Summons to be amended to contain the correct address before the Sherriff may attempt to serve it once more.

What happens if a Defendant Receives the Combined Summons and Particulars of Claim?

If you have had a Combined Summons and Particulars of Claim served on you by the sheriff, it is recommended that you approach an attorney as soon as possible and let them know when the aforementioned was served on you so the attorney can calculate when the Notice of Intention to Defend needs to be served and filed. Once the Defendant has approached an attorney, the process will be as follows:

  1. The attorney will consult with the Defendant to peruse the Summons, discuss which details the Defendant agrees or disagrees with, and discuss the options available to the Defendant.
  2. The attorney will draft a Notice of Intention to Defend and serve it on the attorney representing the Plaintiff or the Plaintiff themselves (if they are not represented by an attorney) within the given timeframe stipulated in the Combined Summons. After service on the Plaintiff, the Notice of Intention to Defend needs to be filed at court.
  3. It is recommended that the attorneys representing the parties in a divorce attempt to host a roundtable meeting to attempt to settle the matter before drafting a Plea. A roundtable is where the parties try to reach an agreement on the terms of the divorce to prevent costly and lengthy litigation.
  4. If a roundtable session or a settlement is impossible, the Defendant needs to serve and file a Plea. This is a document where the Defendant indicates which details in the Combined Summons they agree or disagree with, together with their version of events.

What happens if a Defendant Receives the Combined Summons and Particulars of Claim but cannot afford an Attorney?

Keep in mind that the timeline for when the defendant needs to defend the matter is very important. Once the Defendant has read the entire Combined Summons, they need to confirm whether or not they agree with the content.

If the Defendant agrees with the content of the Combined Summons and how the estate is being divided, they may send a document that states that they do not wish to defend the matter and that they consent to have an unopposed divorce, or they may enter into a settlement agreement.

If the Defendant disagrees with the content or how the estate is to be divided, they must serve and file a Notice of Intention to Defend within the given timeframe, usually 10 court days (business days), as stipulated in the Combined Summons.

What happens if a Defendant fails to serve a Notice of Intention to Defend timeously?

If the Defendant does not serve and file a Notice of Intention to Defend within the allowed court days stipulated in the Combined Summons, the Plaintiff can request that the divorce order be granted and that their prayers Particulars of Claim be made an order of the court, as the content thereof was not defended and is, therefore, unopposed.

Conclusion

The legal process for divorce proceedings must be carefully navigated to ensure that a divorce does not turn into a lengthy, stressful, and costly matter. If you have received a Combined Summons or if you are considering getting divorced, contact one of Burger Huyser Attorneys’ divorce specialists for assistance and the best legal council on how to proceed with your matter.

DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE