Online Reporter
Trust Maanda
Legal Position
THERE are two ways by which spouses can obtain a divorce order.
One of them is contested divorce, while the other is uncontested.
Where the parties contest to the divorce, they go through the procedure of divorce from the issuing and service of the summons by one party to the other to the judgment of the court on the divorce.
This contested divorce route is costly and protracted.
This is when both parties do not agree on all or some of the claims in the divorce matter.
For example, the defendant may deny that the marriage has not irretrievably broken down beyond prospects of restoration of a normal marriage relationship.
They may be denying the reasons given for the claim for the divorce.
Parties may not agree on ancillary matters such as maintenance, custody of children, access to the children, division of matrimonial property and so forth. This will then mean that the parties will go all the way the way to the trial.
But where the parties agree on the issues, they can go for uncontested divorce which is much cheaper and expeditious.
Divorce proceedings are uncontested when the parties to the marriage are agreed on all issues to do with the divorce.
The issues agreed on may include the following:
(i) That the divorce be granted by consent because the marriage has irretrievably broken down to such an extent as to be incompatible with the continuation of a normal marital relationship
(ii) custody of the minor children of the marriage, if any
(iii) The access or visitation rights which the non-custodian parent will have to the minor children
(iv) The maintenance the non-custodian parent will contribute monthly towards the upkeep of the minor children or of the other spouse
(v) How the assets of the marriage will be shared upon divorce.
Divorce proceedings are initiated by way of summons for matrimonial action, to which will be attached a declaration in which the plaintiff will state; the names and physical addresses of the parties, the type of marriage the parties have, when and where they got married the basis upon which the court has jurisdiction to entertain the matter, among other things.
The declaration should then state the grounds for divorce, which are the legally acceptable reasons on which a divorce can be granted.
The grounds must show that the marriage has irretrievably broken down to an extent that there are no prospects of restoration or continuation of normal marriage relationship.
It may state the names and dates of birth of minor children born of the marriage, if any, who should take custody of the minor children of the marriage upon divorce, how much the non-custodian parent will contribute monthly towards the upkeep of the minor children. and how the assets of the parties will be shared upon divorce.
It is advisable for the party seeking divorce to seek the views of the other spouse on the claim for divorce and other relief to be sought made in the summons.
If the other party agrees, the summons can be filed containing a clam that is in terms of the agreed position.
When the divorce summons is served, the parties then enter in to documents commonly referred to as consent papers in terms of which they will agree on the issue mentioned above.
It is after these papers are signed and filed that a divorce by consent can be granted by the court.
One of the papers the defendant signs is the affidavit of waiver, saying they do not wish to defend the matter, that they do not wish to be served with any notice of set down and that they have signed a consent paper and identifies the signatures on the consent paper and marriage certificate.
The plaintiff deposes to an affidavit of evidence in which he or she reiterates the reasons for the divorce and incorporating into it the consent paper and affidavit of waiver.
The matter is then set down for hearing before a judge who grants the divorce order and other relief as agreed to between the parties. The parties do not even have to attend the proceedings.
Settling a divorce by consent shows maturity of the parties.
It is less acrimonious and does not draw the attention of the public. The financial resources of the family are not unduly depleted by legal costs.
Divorce is emotionally draining. There is no need to contest a divorce if the divorce grounds exist.
It is advisable that the parties sit down and agree on the issues and, where possible, go for uncontested divorce than go through harrowing divorce proceedings which will further sour relations between the parties.
Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263772432646.
