Uncontested vs Contested Divorce

When people hear about divorce, they often picture years of court battles and huge legal bills. Some divorces do go that way, but many do not. Whether your divorce is "uncontested" or "contested" makes a big difference to cost, time and stress, and you have more say in this than you may think.

What is happening

An uncontested (or unopposed) divorce is one where both spouses agree on everything that matters: that the marriage is over, how property, pension funds and debts will be divided, whether anyone pays maintenance to the other, and, if there are children, where they will live, how contact will work and how much maintenance will be paid for them. These agreements are written into a settlement agreement, which the court makes part of the divorce order. Only one spouse usually needs to go to court, often for a short hearing.

A contested (or opposed) divorce is one where you disagree on one or more of these issues. The other spouse defends the summons, both sides exchange documents, and if you still cannot agree, a trial decides. This can take a long time and cost a great deal. Many contested divorces settle along the way, sometimes on the morning of the trial.

There is a middle road: mediation. A trained, neutral mediator helps you both reach agreement without a judge deciding for you. Mediation does not replace legal advice, and it is not suitable where there is abuse, threats or a serious power imbalance.

Where there are children under 18, the Office of the Family Advocate may review your plan for the children, even in an uncontested divorce. The court must be satisfied that the arrangements are in the children's best interests, so "we agreed" is not the end of the story.

Is this you?

• You and your spouse mostly agree the marriage is over
• You are worried about how much a divorce will cost
• You are being pressured to sign a settlement quickly
• You disagree about the house, the pension or the children
• You want to avoid a long fight, especially for the children's sake
• You are unsure whether mediation is right for you

30-second self-check

Answer yes or no to each question.

• Do you both agree that the marriage is over?
• Do you agree on how to divide property, savings and debts?
• Do you agree on pension fund interests?
• Do you agree on arrangements for the children, if you have any?
• Can you talk to each other without threats or intimidation?
• Do you each understand what you are giving up and getting?
• Would each of you have enough money to live on after the split?

0-1 yes: A contested path is likely. Get legal advice early, and ask whether mediation could narrow the fight.
2-3 yes: You may be able to settle with help. A mediator or attorney can help close the gaps.
4 or more yes: An uncontested divorce may be possible. Still have an attorney check any agreement before you sign.

What you can do next

• Today: Write down what you already agree on and what you do not. Keep it factual and calm.
• This week: Collect documents: marriage certificate, antenuptial contract if any, bank statements, bond and loan statements, pension fund statements, payslips.
• This month: See a family law attorney or accredited mediator. Ask for an estimate of costs for both paths.
• Never sign a settlement agreement because you are tired, rushed or afraid. Once it is an order of court, it is very hard to change.
• If you give up a pension share or maintenance, make sure you understand what that means for your future.
• Ask how the plan will affect the children, not only the adults.

Your tool

Divorce Readiness Checklist - helps you see what you agree on, what documents you have and where you may need help, so a first consultation is quicker and cheaper.

When to get professional help

Always have a qualified person check a settlement agreement before you sign. Get help straight away if your spouse has an attorney and you do not, if you were served with a summons, or if there is any violence or intimidation. In those cases, mediation alone is not safe or fair.

Who can help: family law attorney, accredited family mediator, Legal Aid SA, counsellor

Getting help in South Africa

Legal Aid SA (legal-aid.co.za) assists qualifying people with divorce matters. University law clinics and community advice offices may help you understand your options. The Office of the Family Advocate (justice.gov.za) deals with the children's side of divorces. You can confirm an attorney's admission with the Legal Practice Council (lpc.org.za). If the stress is getting too much, the Cleared Mind Careline, 0800 212 146, can connect you to a counsellor.