Does It Matter Who Files for Divorce First in South Africa?
Divorce is a significant life decision that comes with emotional and legal considerations. One of the common questions individuals ask is whether it matters who files for divorce first. In South Africa, the legal system does not favor either party based on who initiates the divorce. However, being the first to file—commonly referred to as the plaintiff—does come with its advantages and disadvantages.
In South Africa, divorces are governed by the Divorce Act 70 of 1979, which ensures fairness and equality in the process. The courts are neutral and focus on the facts of the case rather than who filed first.
While filing for divorce first does not inherently provide an advantage in the legal outcome, it does shape certain procedural and financial aspects.
Disadvantages of Filing for Divorce First
Although initiating the divorce process may seem proactive, there are some drawbacks to consider:
1. Higher Initial Costs
As the plaintiff, the person filing for divorce first is responsible for the initial costs of the process. These include:
- Attorney fees for drafting and serving the summons.
- Court fees for filing the divorce application.
These expenses can be significant, especially if the divorce becomes contested later.
2. Emotional and Mental Stress
The decision to initiate divorce proceedings can carry an emotional burden. Filing for divorce first often involves:
- Revisiting painful memories to provide a detailed account of marital issues.
- Facing potential blame from the other party for initiating the end of the marriage.
This emotional stress may impact decision-making during the divorce process.
3. Potential Perception of Aggression
Filing first may be perceived by the other spouse as a confrontational or aggressive move, even if that is not the intention. This perception can escalate tensions and reduce the likelihood of amicable negotiations.
4. Disclosure of Strategy
When you file first, you are required to outline your claims and demands in the divorce summons. This gives the other party insight into your legal strategy, allowing them to prepare counterarguments. The defendant may use this information to build a stronger case against your claims.
5. Responsibility for Initial Court Deadlines
As the plaintiff, you are responsible for setting the timeline for the divorce process, including deadlines for serving documents and initiating proceedings. If deadlines are missed, it can result in delays or complications, which may prolong the divorce process.
6. Potential for Increased Conflict
If the other party feels blindsided by the divorce summons, they may respond defensively or uncooperatively. This can lead to a contested divorce, which is lengthier, costlier, and more stressful than an uncontested one.
Is It Better to File for Divorce First?
The answer to this question depends on your unique circumstances. Filing first can offer advantages, such as setting the tone for the proceedings and having more control over the initial process. However, the disadvantages outlined above should be carefully weighed.
Alternatives to Filing for Divorce First
If you are hesitant to file first due to the potential disadvantages, consider the following alternatives:
- Mediation
Engage in mediation to resolve disputes amicably before initiating legal proceedings. This can lead to an uncontested divorce, saving time, money, and stress. - Pre-Filing Negotiations
Discuss the terms of the divorce with your spouse informally or with the help of attorneys before filing. This can reduce surprises and foster cooperation. - Legal Advice
Consult with a qualified family law attorney to understand your rights and options. They can guide you on the best approach based on your specific circumstances.
Does It Really Matter Who Files for Divorce First?
In the South African legal system, the court’s primary concern is to ensure a fair resolution of issues such as:
- Division of assets.
- Child custody and maintenance.
- Spousal support.
The focus is on the facts of the case, not on who initiated the divorce. Therefore, while filing first may shape certain aspects of the process, it does not determine the outcome.
How Burger Huyser Divorce Attorneys Can Assist
At Burger Huyser Attorneys, we understand that the decision to file for divorce is never easy. Our experienced family law attorneys are here to provide personalised advice, helping you make informed decisions about your divorce process. Whether you are considering filing first or responding to a summons, we are committed to protecting your rights and guiding you through every step. If you’re facing a divorce and need expert guidance, contact us today.
Contact Burger Huyser Attorneys, and book a consultation.
To speak to one of our experienced attorneys in South Africa for immediate assistance, contact us on the numbers below:
Randburg call 061 516 6878; Roodepoort call 061 516 0091; Sandton call 064 555 3358; Pretoria call 064 548 4838;
Centurion call 061 516 7117; Alberton call 061 515 4699; Bedfordview call 061 536 3223
DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE
