Contested
Divorce Questions

If your spouse has instituted a divorce action, you have the right to contest any stated grounds, as well as the prayers listed in the Particulars of Claim. A contested divorce can be time-consuming and expensive for all parties.  If no settlement can be reached, the matter will ultimately reach trial stage where the Judge will decide the outcome. It can take many months/years to reach trial stage.

The divorce summons will specifically mention the amount of days in which you must file your notice to contest the divorce, if relevant. If you do not wish to oppose the divorce and the relief sought, you do not have to file any notice.

It would be advisable to contact a divorce attorney to assist with the necessary paperwork should you not be in agreement with the prayers listed in the Particulars of Claim.

If there is no agreement prior to instituting proceedings, it would be advisable to arrange a consultation with a divorce attorney. He/she will consider the relevant facts, explain your rights and furnish you with more information about the contested divorce process, timelines and legal fees.

You will have to serve and file a Notice of Withdrawal of the divorce action.

Unless there is a substituted service court order in place, the Sheriff will have to serve the divorce summons on the Defendant.

Being the Plaintiff (the one who starts the divorce process) will not influence your rights in respect of the division of assets, maintenance and/or contact with the children, if relevant. It might, however, put you in the driving seat of litigation with slightly more control over the speed of the proceedings, helping you to figure out the road map for moving forward.

In contested divorce matters text message may be used in so far that it is relevant to the proceedings at hand. Proper disclosure of the relevant screen shots of such messages, prior to relying on these messages at the trial, would be required.

The divorce attorney will usually request the following:

1. Certified copy of ID;
2. Proof of address;
3. Recent salary slip or tax return;
4. Copy of marriage certificate;
5. A list of assets and liabilities;
6. A schedule of your income and expenses.

In the period between close of pleadings and waiting for a trial date, there is a process called discovery, during which each party demands to see the documentation and other material like tape recordings the other party intends to use at trial. Each and every document that a party will use at trial must be ‘discovered’, i.e. the other party must be given an opportunity to read the document before the trial commences. The documentation may include bank statements, shareholdings in companies, credit card statements, bond accounts and tax returns.

If a divorce is contested it may take between 2 – 3 years, but most contested divorces settle long before trial stage is ever reached.

Contested divorces are usually charged in accordance with the divorce attorney’s hourly rate. Disbursements (expenses) which include phone calls, emails, printing, scanning, copies, Sheriff’s accounts, Advocate’s accounts, etc. will also be for the client’s account.

Should there be no agreement regarding the terms of the divorce and the divorce is contested, the Judge/Magistrate will decide on how the assets will be divided by taking the martial property regime and specific facts of the matter into account.