A Complete Guide to Contested Divorces in South Africa

Divorce is often an emotionally challenging experience, and it can become even more complicated when the parties involved cannot reach an agreement on important issues. In these cases, the divorce is considered a contested divorce. But what exactly does contested divorce mean, and how does it differ from other types of divorce?

If you’re facing a contested divorce or need advice, Burger Huyser Attorneys is here to help you every step of the way.

What is a Contested Divorce?

A contested divorce is a type of divorce in which one or both spouses cannot agree on the key terms of the divorce settlement. These terms typically include child custody, division of property, spousal support (alimony), child support, and other important matters. When spouses disagree on one or more of these issues, the divorce becomes contested.

In a contested divorce, both parties often need the help of attorneys to negotiate terms and represent their interests. If the couple cannot reach a mutual agreement through negotiation or mediation, the case will be taken to court, where a judge will make the final decisions. This is in contrast to an uncontested divorce, where both parties agree on the terms of their divorce and submit a settlement to the court for approval.

Key Factors in a Contested Divorce

Several factors typically lead to a contested divorce, including:

  1. Child Custody: One of the most common issues in contested divorces is child custody. Spouses may disagree on who will have primary custody of the children, visitation schedules, or other aspects of parenting. Courts prioritize the best interests of the children in making these decisions.
  2. Property Division: In a contested divorce, spouses may argue over how to divide assets and debts accumulated during the marriage, such as real estate, bank accounts, retirement savings, and personal property. Disagreements over the valuation of assets can also prolong the process.
  3. Spousal Support (Alimony): One spouse may request financial support (alimony), while the other may feel it is unnecessary or unfair. Disputes over the amount and duration of spousal support can lead to contention.
  4. Child Support: Parents may disagree on the amount of financial support that should be provided for the children, based on the needs of the children and the income of both parents.
  5. Irreconcilable Differences: In some cases, the underlying reason for the contested divorce may be deeper issues, such as emotional distress, infidelity, or other grievances that make reaching an agreement difficult.

What Happens in a Contested Divorce?

The process of a contested divorce is often more lengthy and complex than an uncontested divorce. Here’s an overview of what typically happens:

  1. Filing for Divorce: The process begins when one spouse files for divorce and submits a petition to the court. The other spouse is then served with the divorce papers, notifying them of the legal proceedings.
  2. Response to Divorce Petition: The spouse who is served with the divorce petition has the option to agree to or contest the terms. If they agree to the terms, the divorce may become uncontested. However, if they disagree on the terms, it remains a contested divorce.
  3. Negotiation and Discovery: In a contested divorce, both spouses and their attorneys will exchange information about assets, debts, income, and other relevant matters. This phase is called “discovery” and can involve gathering financial documents, witness statements, and expert testimony.
  4. Mediation: Before the case moves to trial, many couples are encouraged or required to participate in mediation. Mediation is a form of alternative dispute resolution where a neutral third party (the mediator) helps the couple reach a settlement. If mediation is successful, the divorce may be settled without the need for a trial.
  5. Trial: If the couple is unable to resolve their differences through negotiation or mediation, the case proceeds to trial. Both parties will present their case before a judge, who will make decisions on the contested issues. A trial can take months to prepare for and may involve legal arguments, witness testimonies, and expert opinions.
  6. Judgment: After the trial, the judge will issue a final judgment, which legally dissolves the marriage and resolves the contested issues. The judge’s decision is binding and can only be appealed under specific circumstances.

How Long Does a Contested Divorce Take?

A contested divorce can take a significant amount of time to finalize. While uncontested divorces may be completed in a matter of weeks, contested divorces can last several months or even years, depending on the complexity of the case and the willingness of the parties to settle.

The length of a contested divorce depends on several factors:

  • Number of Issues in Dispute: The more issues that are contested, the longer the process will take.
  • Court Availability: Courts may have a backlog of cases, which can delay the scheduling of hearings and trials.
  • Negotiation and Mediation: The more negotiation and mediation required, the longer the process may take.
  • Preparation for Trial: If the case proceeds to trial, the time it takes to gather evidence and prepare arguments can prolong the divorce.

Who Pays for a Contested Divorce?

The costs of a contested divorce can add up quickly, as it typically involves attorney fees, court costs, expert witnesses, and other expenses. In most cases, each spouse is responsible for paying their own legal fees. However, in some circumstances, one spouse may be ordered to pay the other spouse’s legal fees, especially if there is a significant financial disparity between the two.

If you are the spouse seeking the divorce, you may need to cover the initial costs, but this can be subject to adjustment by the court based on your financial situation and the needs of both parties.

Is a Contested Divorce Worth It?

Deciding whether to contest a divorce is a personal decision, and it depends on the circumstances of your marriage and divorce. Here are some factors to consider:

  • Irreconcilable Differences: If the disagreements are deep and fundamental, such as differences in child custody or division of assets, a contested divorce may be necessary.
  • Financial Matters: If the finances are complex, such as shared businesses, investments, or substantial assets, it may be worthwhile to contest the divorce to ensure fair division.
  • Emotional Considerations: Divorce can be emotionally difficult, and a contested divorce can prolong the stress and anxiety. If a resolution can be reached without litigation, it may be worth exploring.

How Burger Huyser Divorce Attorneys Can Help

At Burger Huyser Attorneys, we understand the complexities and challenges of contested divorce. If you’re facing a contested divorce, our experienced team can guide you through the process with legal expertise and compassionate support. We will work to protect your rights and ensure that the divorce is handled fairly and efficiently.

If you’re considering a contested divorce or need assistance with your case, contact us today to schedule a consultation. We’re here to help you navigate the difficult journey of divorce and reach the best possible outcome.

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