What is the difference between contested and uncontested?
Uncontested means the two of you reach a settlement agreement - on the assets, the children, maintenance - and the court makes that agreement an order alongside the decree. One party appears briefly; the other need not. Contested means one party defends the action, and the matter runs as a trial: pleadings, discovery, evidence.
The ground of divorce is the same either way: the irretrievable breakdown of the marriage - that the relationship has disintegrated beyond reasonable prospect of restoration. What contest changes is not whether the divorce will be granted, but how long, how public and how expensive the road there is. Most contested divorces settle before trial; the question is how much is spent first.
How long does a divorce take?
An unopposed divorce, where a settlement is signed and the papers are in order, can be finalised in roughly a month. An opposed divorce cannot honestly be given a number - it depends on what is disputed, on the court roll, and on how soon the parties tire of fighting. What we can control, we do: papers go out promptly and the matter is pressed forward at every step.
What does it cost?
A fee estimate is given at the first consultation, once we can see whether the matter is likely to settle or to be fought. That is the honest way round: the difference between an unopposed and an opposed divorce is the difference between a fixed, modest exercise and litigation, and no one can price the second sight unseen. Worth knowing: in a divorce the court is not bound to order the loser to pay the winner's costs - it may apportion costs as it considers just.
What happens to the house?
The starting point is how you are married. In community of property, the house falls in the joint estate, which is divided. Out of community with the accrual system, the house belongs to whoever owns it on title, and the other spouse has a money claim under the accrual. Out of community without accrual, each keeps their own estate - though since a 2023 Constitutional Court ruling a court may, in appropriate cases, order a just redistribution of assets even in such a marriage, and the Act has always allowed a court to order forfeiture of the benefits of the marriage against a party in deserving cases.
Within any of those frameworks, a settlement can deal with the house however the two of you agree - sold and the proceeds split, kept by one with the other bought out, kept for the children. What happens to your particular house depends on your regime, the bond and the figures, and it is covered properly in consultation.
How is maintenance decided?
Two different questions hide in this one. Maintenance for the children is not negotiable in principle: both parents carry the duty of support jointly, in proportion to their means, and the court will not grant a divorce until it is satisfied the arrangements for the children are satisfactory.
Maintenance for a spouse is another matter - there is no automatic right to it. The parties may agree on it in the settlement. Failing agreement, the court may order what it finds just, weighing the means and earning capacity of each party, their financial needs and obligations, their ages, the duration of the marriage, the standard of living before the divorce, and conduct insofar as it is relevant to the breakdown. A short marriage between two earners looks very different from a thirty-year marriage in which one spouse gave up a career.
Who gets custody, and what does the court look at?
The law no longer speaks of custody but of care and contact, and the modern starting point is that both parents keep their parental responsibilities and rights after divorce - what gets decided is where the children primarily live and how contact with the other parent is structured.
The children are not an afterthought to the decree; they are a condition of it. The Act forbids the court from granting a divorce until it is satisfied that the arrangements for every minor or dependent child are satisfactory or the best that can be achieved, and where the Family Advocate has instituted an enquiry, the court must consider that report first. The standard throughout is the best interests of the child - the relationship with each parent, each parent's capacity to provide, the effect of change and separation, the child's age and needs, and the need to protect the child from harm. In a proper case the court can grant sole care or even sole guardianship, but that is the exception, not the rule.
Do we each need our own attorney?
It depends. Where the parties can foresee that the matter will settle, it is not necessary for each to brief an attorney - one attorney drafts the settlement agreement and the divorce runs unopposed. Be clear, though, about what that means: an attorney acts for one party, not for both. The other party signs the agreement of their own accord and is always free to take it to an attorney of their own first, which we would never discourage.
The moment real dispute appears - over the children, the assets or maintenance - separate representation stops being a luxury. You cannot share an attorney with the person you are litigating against.
Do I have to come to your offices?
We would prefer it. A great deal is lost over email, and these are matters where sitting across a desk from one another makes a real difference. Where the distance genuinely makes that impractical, we consult by video call instead.
Can you advise me by email or WhatsApp?
No. We advise in consultation. A message is the right way to arrange an appointment, but not the right way to receive advice on something this consequential.
What should I bring to the consultation?
Your marriage certificate and antenuptial contract if you have one, and whatever you have on the finances - bond statements, pension details, anything showing what is owned and owed. If you have nothing, come anyway - it is better to start the conversation than to wait until the file is tidy.
How do I make an appointment?
Telephone 087 133 3595, or send the short form on this site. We will contact you to arrange a date and time.
