Does It Matter Who Files for Divorce First?
The decision to file for divorce is a deeply personal and often difficult one. One question that many individuals facing divorce ask is whether there is an advantage to being the first to file. In South Africa, the courts strive to ensure fairness in divorce proceedings, meaning that filing first does not automatically lead to a more favorable outcome. However, there are some potential advantages to initiating the process.
In South Africa, divorces are governed by the Divorce Act 70 of 1979, which ensures impartiality in the legal process. Whether you are the plaintiff (the one filing for divorce) or the defendant (the one responding to the filing), the courts prioritize:
- Equitable division of assets.
- Fair arrangements for child custody and maintenance.
- Resolution of disputes based on evidence and applicable law.
This means that filing first does not give you a direct legal advantage. However, there are strategic and practical benefits to consider.
Advantages of Filing for Divorce First
While filing for divorce first does not influence the court’s decision-making, it can offer the following advantages:
1. Control Over the Process
As the plaintiff, you have the ability to set the tone for the divorce proceedings. You:
- Choose when to initiate the process, allowing you to prepare mentally, emotionally, and financially.
- Determine the pace of the initial stages, such as serving the summons and filing necessary documents.
2. Choice of Jurisdiction
Filing first allows you to select the court where the divorce will be heard. In South Africa, a divorce can be filed in:
- The court where either party resides.
- The court closest to where the couple last lived together.
By filing first, you can choose a court that is more convenient for you.
3. Preparation Time
Being the first to file gives you an opportunity to prepare thoroughly. This includes:
- Consulting with an attorney to understand your rights and options.
- Gathering financial records and other necessary documentation.
- Outlining your desired outcomes regarding asset division, child custody, and maintenance.
4. Strategic Advantage in Negotiations
Filing first allows you to outline your claims in the divorce summons. This gives you an opportunity to present your preferred terms for the settlement, which can serve as a starting point for negotiations.
5. Emotional Readiness
The decision to file first often means you’ve had time to process the end of the marriage and are emotionally ready to move forward. This can provide a psychological advantage during what can be a highly emotional process.
Factors to Consider Before Filing First
While there are advantages to filing first, it’s important to carefully consider your circumstances:
- Financial Costs
The plaintiff is responsible for the initial legal costs, including:
- Attorney fees for drafting and serving the summons.
- Court filing fees.
Ensure you are financially prepared for these expenses.
- Emotional Impact
Filing for divorce first can be emotionally taxing, as it involves formally initiating the end of the marriage. Consider whether you are ready to take this step. - Potential for Conflict
Filing first may be perceived by the other party as confrontational, which could escalate tensions and complicate negotiations. - Long-Term Goals
Consider whether filing first aligns with your long-term goals for the divorce, including the resolution of disputes and maintaining an amicable relationship (if possible).
Is It Better to File for Divorce First?
The answer to this question depends on your unique circumstances. Filing first can provide a sense of control and allow for better preparation, but it also comes with financial and emotional responsibilities. It’s important to weigh the pros and cons with the help of an experienced family law attorney.
How Burger Huyser Divorce Attorneys Can Help
At Burger Huyser Attorneys, we understand that divorce is a life-changing decision. Whether you are considering filing for divorce first or responding to a summons, our team of skilled family law attorneys is here to guide you through the process.
We provide:
- Personalized legal advice tailored to your situation.
- Expert assistance in preparing documents and navigating the legal process.
- Support in negotiations and court proceedings to protect your rights and interests.
While filing for divorce first does not guarantee a more favorable outcome in South Africa, it does offer certain strategic and practical advantages. Ultimately, the decision to initiate the process should be based on careful consideration of your circumstances and legal advice.
If you’re considering filing for divorce or need guidance on your options, contact Burger Huyser Attorneys today. Let us help you navigate this challenging time with confidence and clarity.
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
