Asked by the Customer on 10-01-2020 10:51:45
Question posted in the Family Law category relating to Limpopo

Good day

I am married to my South African wife who lives in Modimolle, Limpopo Province with our 10-year-old son. I live in Nairobi, Kenya. Yesterday she sent me a copy of a divorce summons by e-mail. Although we had agreed in principle to proceed part ways, I don't agree with many of the demands contained in the summons.

How I proceed?

Regards.

J Mbewe

Posted by Att. Patrick on 10-01-2020 11:36:37

Hi there and thank you for your question,

I am a practicing attorney based in South Africa and I will assist you with your question. Please feel free to ask as many follow up questions in order to clarify your question. If you have a new question, you must please open a new thread.

Well, the first thing that I can tell you is that it is not good enough for her to simply send you a copy of the divorce summons via email. In terms of the Rules of Court, the sheriff of the court is required to formally serve the summons on you. If the sheriff is not able to do so, the Court will grant an order providing directions as to how service of the summons must be effected. If your wife's attorney has requested service via email, the court might direct that they can do this - but it would be up to your wife's attorney to email it to you; not your wife personally.

So, I don't that there has been proper service of the summons. If you wanted, you could (1) write back to your wife to accept service of the summons via email and then appoint an attorney in Limpopo to represent you, or you could (2) write back to your wife to say that you can't open the attachment and you don't know what the document is. Then, you would be taking your chances with the Court as to whether she has done enough to bring the summons to your knowledge. 

I think that you should appoint an attorney to assist you, and formally defend the claims in the summons. 

I can't refer you to a specific lawyer, but I can direct you to www.southafricanlawyer.co.za, where you can find a list of qualified lawyers in Limpopo with divorce law experience who will be able to assist you further and represent you personally!

I can also suggest that if you want to get divorced, you could try settle the terms of the divorce with your wife. You would then enter into a consent paper, which would then be made an order of Court. You would then be divorced. 

You should also be aware that South Africa has a no-fault divorce system, which means that it doesn't matter who is to blame for the breakdown of the marriage. As long as the Court accepts that the marriage is broken down, irretrievably, the Court will order a divorce. 

Your consent paper will however need to deal with who the primary caregiver of your son will be; also maintenance for your son; also what rights of access you will have to your son. 

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.

Dear Attorney Patrick
Many thanks for your detailed reply. Since proper court processes have not been followed in issuing the summons, does that mean that in its current form it is not valid, and I may simply ignore it, and not respond to her e-mail?
We had agreed on the terms of the divorce, but then the demands on the summons are completely different and place me at a grave disadvantage.

Posted by Att. Patrick on 12-01-2020 09:05:22

No, its not in the "issuing" of the summons, it is in the "service" of the summons on you in terms of the rules of court. The summons is still valid, but before a court will hear the summons, the court wants proof that it has been served correctly. I do not think that your wife simply emailing it to you is sufficient proof. It is NOT service in terms of the rules of court. 

Thank you very much, Attorney Patrick. The absolute last question, as things stand and if I hire an attorney, is there anything that can be done?

Posted by Att. Patrick on 13-01-2020 09:32:39

Yes, your attorney can defend the divorce summmons and you can put your version of events before the court. You can also then try settle the matter - which is called an unopposed divorce. That's the best way forwards, because it is quick and cheap!