By Estiaan Conradie
American comedian and writer Larry David once said that “A good compromise is when both parties are dissatisfied1“. The question however arises whether the same can be said when spouses have decided to enter into divorce proceedings?
When spouses come to the conclusion that their marriage relationship has broken down to an irretrievable degree, the next steps they take could make a significant impact on their reality for the undetermined future. It generally leads to either an opposed divorce or an unopposed divorce.
In legal divorce proceedings the differences a legal practitioner is faced with, seem minor, when compared to the differences these proceedings will have outside of the court on the parties. In deciding which option would be the best, the following factors, amongst others, need to be taken into consideration:
- Time constraints;
- Available funds;
- Whether there are minor children born from the marriage;
- Whether there are dependant major children born from the marriage;
- Spouses’ flexibility;
- Form of marriage that exists;
- Financial standing of both parties;
- Surrounding circumstances that lead to the marriage breakdown;
This article will further look specifically at unopposed divorce proceedings and the current process thereof.
An unopposed divorce is often seen as the most affordable and time efficient way to ultimately get divorced. This manner of divorce entails the spouses (hereinafter “the parties”) coming to an agreement. Commonly referred to as a settlement agreement. This is done before a court is approached for the actual decree of divorce. The settlement agreement is often supplemented with a parenting plan in the event where minor or major financially dependant or minor child(ren) are involved.
The settlement agreement will include clauses, depending on the form of marriage, such as the marriage being broken down irretrievably, division of the assets, spousal maintenance and that the settlement agreement is the final division of any and all claims that the one party of the marriage may have against the other, to name a few. In essence, this is where the parties come together to compromise and prioritise various factors to negotiate an outcome that is beneficial for all involved.
Once the settlement agreement has been entered into, the appointed legal practitioner will draft a summons wherein the settlement agreement is incorporated, and the court is to be approached on an unopposed basis for the relief sought. After issuing the summons at court, it must be served via sheriff to the party referred to as the Defendant (the spouse), allowing for a ten-day period during which a defence may be entered into.
Assuming the parties reached a settlement and the matter remains in default, the legal practitioner will use this time to prepare the necessary documents to secure a court date. After the ten-day period has lapsed, these documents will be filed, and a court date will be assigned.
Depending on the legal firm’s culture and philosophy, many legal practitioners will advise the parties to consider entering into a settlement where possible, in order to avoid the possible hardships and complications of an opposed divorce. An unopposed divorce not only facilitates a more efficient resolution but also helps to prevent prolonged conflict, which can have detrimental effects on both the parties and especially any minor children involved.
While a settlement may require each party to compromise, it empowers them to maintain control over the outcome of the proceedings. The idea that both parties may be dissatisfied with the contents of a settlement agreement is entirely plausible. However, the essential advantage is that it preserves their sense of control and provides certainty regarding the court’s final decision.
Consulting with a legal practitioner when contemplating a divorce is crucial. They can provide valuable insights into the specifics of your situation and help determine whether pursuing a settlement agreement is a viable path forward. In navigating the complexities of divorce, professional guidance can make a significant difference in achieving a favourable outcome.
1Larry David, Curb Your Enthusiasm: The Complete Seventh Season