We had divorce consent papers drawn up i...

Asked by M Englund on 11-03-2015 17:36:47
Question posted in the Divorce Law category relating to Gauteng

We had divorce consent papers drawn up in 2006 just before my spouse left to relocate in Australia taking my two children with her. Although the divorce consent paper content was agreed there were amendements which were required and the document was duly amended but never signed.

In 2007, as the result of son not being able to make the necessary adjustments to his new life, I consentually arranged to travel to Australia, collect and bring him back to South Africa.

I have seen my ex-spouse twice since she has relocated, once to collect my son and then to visit Australia to attend my daughters graduation in 2009. Since that time there has been virtually nil communication apart from the very sporadic telephone conversations in 2008 concerning my son's shooling progress.

As I wish to re-marry, it is important to understand the status of the relationship with my ex spouse.

1. Is there prescription on this situation?
2. Does the marriage simply 'cease to be' under these circumstances which must be affected by time?
3. Is there still a requirement for the due process of signing, lodging and formal divorce proceedings?

Your comments wil be most appreciated.

Mike Englund

Message from the Lawyer

Posted by Att. Patrick on 12-03-2015 09:31:34
Hi there and thank you for your question,

This is a further information request. Please continue in this same question conversation so that I can see your reply.

Have you issued a summons already which has been served on your wife? i.e. Have you got a case number, and have pleadings already been instituted?

OR, have you just drawn up a consent paper? 

Awaiting your further information.

Att. Patrick

Message from the client

Ji Patrick,

In reply to your query:

No summons have been issued, wWe have just drawn up a consent paper.

Message from the Lawyer

Posted by Att. Patrick on 13-03-2015 12:13:45
Hi again,

Well then, it makes the answers easier to give.

1. Is there prescription on this situation? --> No, there is not.

2. Does the marriage simply 'cease to be' under these circumstances which must be affected by time? --> No, the marriage continues until it is dissolved by way of divorce. Time passing does not affect it, and neither does one party living in another country.

3. Is there still a requirement for the due process of signing, lodging and formal divorce proceedings? --> Absolutely yes.

The consent paper would actually have NO value whatsoever in this matter. You would need to issue a divorce summons and then have it served, and then the parties could agree on the consent paper being made an order of court. BUT, if the parties can't agree on having the consent paper made an order of court, the current consent paper would be worthless - you couldn't even admit it to court! It would have been done on a without prejudice basis and would only be binding on the parties once it was physically signed and made an order of court!

If there is a part of the answer which you need more advice on, or clarity please continue in this same thread instead of opening a new question.
Att. Patrick

Please remember this is a dialog if you have follow up questions please use the REPLY button and ask. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered. I hope you found my answer helpful, and you have finished asking your questions, please click on the GREEN ACCEPT button in order to mark the question as closed.

Answer Accepted

This answer was accepted on 13-03-2015 14:21:56

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