Jewish Life Digital Edition November 2014 | Page 77

SOMETHING BOTHERING YOU? Send us your family law quandaries – [email protected] THE PARTIES MAY ALSO SERVE AND FILE A DOCUMENT CALLED A REQUEST FOR FURTHER PARTICULARS FOR TRIAL, IN WHICH THEY SEEK CLARIFICATION OF THE CLAIMS IN THE OTHER PARTY’S PLEADINGS. that party will issue a notice in terms of Rule 35(3), which requests copies of specific documents. Should one party fail to file his/her discovery affidavit or reply to a notice in terms of Rule 35(3) when called on to do so, the party calling for discovery/Rule 35(3) reply can bring an application to compel the other party to file his/her discovery affidavit or Rule 35(3) reply. The applicant will ask for a costs order against the defaulting party. The parties may also serve and file a document called a request for further particulars for trial, in which they seek clarification of the claims in the other party’s pleadings. In terms of Rule 37, a pre-trial meeting must be held six weeks before the trial, and minutes of the meeting filed five weeks before the trial. The purpose of a pre-trial meeting is to try and narrow down the issues which will be adjudicated at the trial. The pre-trial conference is also a good time to explore the possibility of settlement of the matter, if the matter has not settled yet. The parties will each serve a pre-trial agenda (called a Rule 37(4) notice), setting out the admissions, issues in dispute, and other practical issues relating to the running of the trial. The parties will then exchange their replies to one another’s Rule 37(4) notices and hold a pre-trial meeting, and the minutes will be filed. Generally, it will be the plaintiff who will draft and file the minutes of the meeting. If either or both of the parties are intent on calling any witnesses, be they expert witnesses such as psychologists or forensic accountants, or lay witnesses such as family and friends or business acquaintances, they will file specific notices and follow the procedures set out in the rules of court. It is beyond the scope of this article to explore this in more detail. LAST STEP IN TRIAL PREP The final step in trial preparation is to produce the trial bundles – the specific documents which both parties wish to use at the trial. This may or may not be all the documents which have been discovered. A party cannot use any documents which he/she has not discovered in a trial bundle. The trial will then run for as long as it has been set down to be heard. At the end of the trial, the judge hearing the matter will hand down judgment and make an order of court, which is binding on the parties, until it is replaced by another court order. The judgment may not be handed down immediately, in which case the parties will return to court with their respective legal teams on the date set by the judge for the handing down of judgment. The parties have little control over the terms of the order and are at the mercy of the judge. Along with the high costs of litigation, this is one of the reasons I prefer collaborative divorce, mediation or settlement discussions to litigation, as in all these processes, provided you have been properly guided, you have a direct say in the final terms of any court order. One final thought before I wrap up this topic; SA is one of the only jurisdictions, if not the only jurisdiction, which recognises the importance of a religious divorce in addition to a civil divorce. The introduction into our law of section 5A of the Divorce Act means a court can refuse to grant a civil divorce if “it appears to a court in divorce proceedings that despite the granting of a decree of divorce by the court the spouses or either one of them will, by reason of the prescripts of their religion or the religion of either one of them, not be free to remarry unless the marriage is also dissolved in accordance with such prescripts or unless a barrier to the remarriage of the spouse concerned is removed”. The court must be satisfied that the spouse within whose power it is to have the marriage dissolved or the barrier to remarriage removed has taken all the necessary steps to do so. This means that in all matters where a Get is necessary, it is important to plead the terms of Section 5A if there is even the slightest chance that the husband will not grant a Get. It is also important that settlement agreements include the details of how and when the Get will be given to the wife to ensure that the agreement does not fall foul of Section 5A. Where a Get has been granted prior to the granting of a divorce or the institution of the divorce proceedings, it is not necessary to deal with this issue in the papers. Now that I have canvassed the litigation process, next month I will look at some of the terminology used b 䁅