Unopposed divorce action is also referred to as uncontested divorce action. It is an ‘action’ because divorce can only be commenced by way of a summons and not an application. There are three circumstances under which a divorce action can be said to be unopposed and these are;
- Cases where the defendant having been served with the Summons does not defend the action at all within the given time.
- Cases where the defendant does not defend the action but enters into a consent with the plaintiff.
- Cases where the defendant initially defends the action and at any stage before trial enters into a consent with the plaintiff.
It is the first category of cases which sometimes present difficulties in light of Order 35 Rule 269A of the High Court Rules, 1971. The Rule provides as follows;
“269A. Summons commencing action
The summons commencing an action mentioned in this Order may, at the option of the plaintiff, be issued in Form No. 30A, to which a copy of the plaintiff’s declaration shall be annexed, in which case the provisions of rule 272 shall not apply to such an action.”
The provisions of Rule 272 are to the effect that where the defendant, having been served with the summons, has failed to enter appearance to defend he/she shall be given a notice in Form No. 30 calling upon him/her to enter appearance and to plead within twelve days of the date of delivery of the notice and informing him/her that in default thereof judgment will be prayed against him/her. The Rule further provides that the plaintiff may thereafter set down the matter and effect personal service of the notice of set down on the defendant.
It would appear from the provisions of Rule 269A that where one uses the summons in Form No.30A there is no need to follow the provisions of Rule 272 and the plaintiff can obtain default judgment without serving the notice in Form No. 30. This is the interpretation given by the court in the case of Mathe v Mathe HB17/12. The court however held that personal service of the notice of set down remains a requirement.
The court in Tarumbwa v Tarumbwa HH19/2007 took a view which we humbly subscribe to. It held as follows;
“Further, it appears anomalous that the same court would be required under Rule 272 to ensure that a defendant in a divorce action instituted ordinarily, as opposed to a defendant served with Form 30A summons, is given every opportunity to defend the action, including being given an opportunity to appear in court on the set down date and to defend the divorce action at that late hour yet not afford the same rights and protection to defendants served with Form 30A summons when such summons have no features safeguarding the protection afforded by Rule 272 as used to be the case.
The plaintiff can obtain a default judgment without the defendant being given an opportunity to purge his failure to enter appearance to defend, to plead or to exercise the other options provided by rule 272(1)(a). This would not have been the intention of the legislature considering that we are dealing with matters which have the effect of changing the status of the parties”.
The court in the Tarumbwa case ordered that Rule 272 be complied with in spite of the plaintiff having proceeded in terms of Form No. 30A. Even in judgments where it was held that there is no requirement for a notice to plead where one uses Form 30A, emphasis is still put on the fact that the notice of set down should be served personally on the defendant. What is the purpose of personal service of the notice of set down other than to give the defendant the opportunity to defend the action even at the 11th hour? The Judge President recently gave a guide to unopposed divorce matters on 30 October 2020 and the guide gives support to the position taken in the Tarumbwa case.
In categories 2 and 3 the parties should enter into a consent paper detailing their agreement on such issues as custody, access, and property distribution. The defendant should further sign an affidavit of waiver. In all the three categories the plaintiff should depose to an affidavit setting out the evidence on which he/she relies in support of the order being sought.
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