The Divorce Process in South Africa

If you are unhappily married and you realise that there is nothing that you can do to save your marriage, you should read this article.  We explain everything from the concept of Divorce, the types of Divorce, the reasons for Divorce, the service of the Divorce Summons, Divorce Attorneys’ fees, and what to do if you do not know where your Spouse lives and the Divorce procedures.

This article will tell you things you might not think of asking, but you’ll be glad we thought of putting them in here – especially so that you may keep your composure but at the same time, be ‘in the know’.

What Are the Consequences of a Divorce in South Africa?

When you get Divorced in terms of South African law, we refer to the termination of a marital union. When the marital union is terminated, the legal duties and responsibilities of the marriage are dissolved, and the bonds of matrimony come to an end.

Divorce Requirements

You can get a Divorce in South Africa based on the irretrievable breakdown of the marriage relationship. This means that the Court must be satisfied that the marriage relationship cannot be saved.

The Court may accept evidence (without limitation) that a marriage relationship has broken down irretrievably if the Spouses have not lived together for a period of 12 months, or if one of the Spouses has cheated on the other and the other Spouse finds it irreconcilable to continue with the marriage relationship.

The Court may also grant a decree of Divorce if a Spouse has been declared a habitual criminal and is undergoing a prison sentence or is mentally ill or continuously unconscious.

Read more about the Divorce Stats in South Africa!

# Pro Tip 1

The Courts generally grant a Divorce Order if any evidence is led that the marriage relationship has broken down irretrievably and that the marriage cannot be saved.

How Do You Know You Are Ready to Get A Divorce?

The decision to proceed with your Divorce will be one of the most difficult decisions that you will make in your life. Psychologists have written extensively on this topic.

Many of our Clients tell us that they know that they have waited much too long to get Divorced.

Our view is that you need to get a Divorce if you are very unhappy in your marriage and that nothing that you or your Spouse have done has helped to improve your marriage.  Nobody should live in a relationship that continuously makes them unhappy.

# Pro Tip 2

If you think that you must remain in the marriage for the sake of your children, think again. Studies have shown that people that stay in their marriage for the sake of their children normally cause more harm to the children that if they divorce.

A study in the UK found that 82% of those children aged 14 to 22 who have endured family breakups would prefer their parents to part if they are unhappy. They said it was ultimately better that their parents had Divorced.

You Have Now Decided to Proceed with Your Divorce. What Now?

Once you have made the decision to proceed with your Divorce, you must ordinarily decide which Divorce Attorney you want to represent you (or you may decide to try and Divorce by yourself).

If you and your spouse have an agreement and the Divorce will proceed amicably, on an unopposed basis, you and your Spouse can appoint the same Divorce Attorney to assist you with the Unopposed Divorce.  However, if your Divorce becomes contested (opposed) the Divorce Attorney will not be able to represent you both, as that would be a conflict of interests.

Find an Attorney that makes you feel comfortable but ensures that you get a Divorce Attorney that knows and thoroughly understands the Divorce procedures; and one that has handled so many Divorces themselves, that they are intimate with all the nuances of each and every process.

You need to feel safe with your Attorney. You must feel respect for his knowledge of the law and his ability to comport himself well in Court – even when under pressure. Further, you should feel sufficient confidence in him that you can tell him anything about yourself and know that he will do the right thing with the information.

Types of Divorces

You get Opposed or Contested Divorces and Unopposed or Uncontested Divorces.

# Pro Tip 3

When you select your Divorce  Attorney and you have a complex Divorce, or a very acrimonious Divorce, make sure that the Divorce Attorney that you appoint has extensive knowledge of Divorce matters, and that they have not only handled a few Divorces in their careers but that they have extensive Divorce law experience with Divorces that have gone on trial.

Unopposed Divorce Aka Uncontested Divorce

An Unopposed Divorce is a Divorce where the one Spouse fails to oppose the Divorce and the Divorce Order is granted by default or where the Spouses negotiate a Divorce Settlement. The negotiations can be done between the Spouses directly or can be done with the assistance of Mediators.

It is only when both Spouses are in absolute agreement, not only about getting Divorced but when they also agree with regards to all the ancillary aspects of the Divorce that one can say with complete confidence that it is an Unopposed Divorce.

Spouses are encouraged to attempt settlement between themselves and to only proceed with litigation if settlement talks fail and the matter cannot be settled amicably between the Spouses.

Things to Consider When You Plan on Getting an Unopposed Divorce:

If You Have Minor Children: –

• Decide where the Minor Children will stay (and with whom – either the Husband or the Wife) – also known as primary residence of the Minor Children and what contact the other parent will have with the Minor Children.
• Make sure that you agree on the total amount of child maintenance that is payable and which parent is responsible for what expenses of the Minor Children.
• Also take into consideration that the Family Advocate must accept and endorse this agreement reached between the parents to be in the best interest of the Minor Children.

Division of Assets and Liabilities: –

•  When you decide on the division of the assets and liabilities, ensure that you get what you are entitled to.
• You need to know and understand your marital regime, i.e. are you married in community of property, or are you married out of community of property with the accrual or without the accrual?
• You can then divide the assets and liabilities in terms of your marital regime or in a way that both Parties find suitable – if you both agree on the terms of the settlement.
• Take into consideration any ancillary costs. This may be things such as the transfer cost of immovable property if you must sell your house as part of the Divorce Agreement. Think carefully who will pay for the transfer costs as this may be a material amount.
• A lot of people discover after the Divorce that their Spouse was dishonest. Ensure that you can trust your Spouse before you agree to an unopposed Divorce.
• Sometimes, a Spouse finds out after the Divorce that they were cheated during the Divorce settlement as their ex failed to declare – or hid assets that may be worth a lot of money. Make sure that you do your due diligence before agreeing to the division of assets.
• Finally, neither Spouse walks away feeling completely happy with the division. Nobody gets exactly what they wanted. Be prepared to compromise – within reason, and bring those expectations down a notch or two.

Opposed Divorce aka Contested Divorce  
A Contested or Opposed Divorce Is an Acrimonious Divorce Where the Spouses Cannot Agree on One Or More Aspects of The Divorce. 

It does not matter whether or not the Spouses are represented by a Divorce Attorney; even if the Spouses agree on everything except for one aspect; the Divorce will be a contested Divorce. So, even if the Parties agree on the division of the assets, on where the Minor Children will live after the Divorce, but they cannot agree whether the one Spouse must pay spousal maintenance to the other, the Divorce will be contested.

A typical contested Divorce can take from a few months to a few years to be finalized as the Court must adjudicate the issues in dispute. The issues in dispute can be anything and may include any of the following issues: –

• Parental Rights and Responsibilities Issues such as who will be the primary caregiver of the Minor Children after the Divorce, and child maintenance, and also contact for the non-primary caregiver;
• Division in terms of the Ante-Nuptial Agreement and /or of the joint estate;
• Who will pay for what debt incurred during the marriage;
• Spousal maintenance – if it is payable or not, and if so in what amount;
• Etcetera.

Whilst a Divorce Attorney / Divorce Lawyer normally charges a nominal or agreed fee for an uncontested Divorce, a contested Divorce is normally billed at an hourly rate. This is because an Attorney cannot easily give a cost estimation due to many variables such as an Interim Application that may have to be brought and the issues in dispute.

Interim Applications may include Rule 43 Applications (High Court) or Section 58 Applications (Regional Courts), Applications to Compel, Domestic Violence Applications and many more types of Applications.

With an opposed Divorce, various experts must be briefed by the Divorce Attorneys.  These experts may include Forensic Auditors, Actuaries, Industrial Psychologists, Clinical and Forensic Psychologists and others. If the Parties cannot afford these experts it may be more difficult to present a Party’s case to the Courts.

We normally ask our Clients to supply at least the following information to assist us with our preparation: – 

• A timeline that details the Spouses’ lives together. We require a written narrative of as much detail as possible about the Spouses’ lives together,   including the things they would never tell anyone else.
• A complete list of all family assets and liabilities (spreadsheet) and details pertaining to both Spouses’ monthly spending habits, and monthly income. That’s not just salary but also any other funds which each Spouse might receive from another source.
• Marriage Certificate, the Unabridged Birth Certificates of the Minor Children, Ante-Nuptial Contract (if applicable).

# Pro Tip 4

The Spouse that is best prepared normally has the best results in a Divorce. Work with your Divorce Attorney / Divorce Lawyer and supply the information required as this is to your benefit. Don’t hold back; in fact, more information is better than less. Tell your Attorney everything- even your thoughts. The more you tell him, the better he can help you.

What to do if you want to proceed with your Divorce but you do not know where your Spouse is?

Edictal Citation and Substituted Service (When you cannot locate your missing spouse).

Substituted Service

This is allowed if it is thought that the other Spouse lives in the Republic of South Africa. If it is not known in which area, they reside then the Application for Edictal Citation would be combined with that of Substituted Service.

This type of Application should be made before issuing the Summons which launches the Divorce Action.

If the Spouse is missing then the Court must be shown in the Application that every step has been taken that is possible to locate the missing Spouse; indication must also be made that Substituted Service is probably the only method of Service that might be effective in reaching the attention of the missing Spouse.

It is at the Court’s discretion to indicate which manner of Service the Court would deem appropriate in such cases. It could rule that publication in a newspaper, or Service on members of the absent Spouse’s family or friends maybe effective: it could, in some cases, even sanction Service by fax or email. Whatever the Court’s ruling will be dependent upon the facts presented to it in the Application.

Lastly, the Court will also decide upon the time period in which the Notice of Intention to Defend, or the Notice of Opposition, should be filed. The Notice of Motion will contain provision for such response.

Edictal Citation

When the Spouse you want to Divorce lives in another country, the High Court or the Regional Court must be approached for permission to serve Divorce documents on the Spouse in the foreign country. This is done by means of an Edictal Citation which is drafted and applied for by your Specialist Divorce Lawyers.

Divorce and Family Law is the fields of Law where the Parties in question must be served in person. Because of this, the Court must be content that although this is being done in a foreign country by an official of Court, it is still being done correctly.

Therefore, an Edictal Citation is a process whereby permission is granted by the appropriate South African Court to have Divorce documents served by a Court Official overseas. They could be known as Sheriffs, Service Processors or even Solicitors.

It is not unusual nowadays for a couple to become married in one country, live in another country and become Divorced in yet another country.

In spite of all of the above, even in these modern times, when dealing with Divorce and Family Law, a Summons can usually only be served in person and not by e-mail, registered post or any other form. This is further discussed in Substituted Service

Edictal Citation is applicable if:

•  You need a Divorce from your Spouse overseas; Service can take place at their home or workplace etc.
•  You need a Divorce from your Spouse who lives overseas but disappeared: The Court has the power to grant a form of Substituted Service, i.e. Service upon a relative or maybe Attorneys who acted for the missing Spouse whilst that Spouse was in South Africa, etc.

To do this, you must meet the Court’s criteria:

• You must be living within the Court’s jurisdictional area on the date Divorce Proceedings begin.
• It is your usual place of residence/domicile.
• You must have been living there for at least one year immediately prior to the date of Application.
• If your Spouse is missing; through your Edictal Citation Application you will have to show the Court that you have done everything within your power to trace your absent Spouse. The reason for this is the issue about the need for personal service. Your Application will have to satisfy the Court that you have exhausted all the conventional methods of locating the Spouse who has disappeared.

So, if your Divorce Summons is to be served overseas, the Court must first be caused to understand that it is the only way to have the Summons served.

Your Application must give full details of the person who will be appointed to do the Service, i.e. the Sheriff, Service Processor or Solicitor, in the foreign country. This means you must correspond with these people in the foreign country and post the necessary documents to them.

After the Service of the Summons, in the foreign country, your Spouse will have a month to defend the Action. If your Spouse ignored the Summons, or, if your Spouse defends it; once the financial and other Settlement terms have been reached, the matter may be set down for Hearing. The date of Hearing will be pre-arranged with the Registrar of the High Court or of the Regional Court.

# Pro Tip 5

The Court Processes can be complicated if you do not know where your Spouse is. Book a consultation with a Divorce Attorney to find out what your rights and responsibilities are when you plan to get a Divorce.

Divorce Procedures – a basic explanation of the Divorce procedures and what to expect

Proceeding with a Divorce is normally a very stressful time for most people. If you understand what to expect, you will likely find the Divorce easier. Take a notepad and pen to make notes so that there is no confusion later.

The Start of the Divorce Proceedings

You have decided to proceed with your Divorce, and you have selected a Divorce Attorney that you feel comfortable with.

You must obtain as much information with regards to your assets, liabilities, income and expenses as possible.

Prepare a timeline for your Divorce Attorney that details all the important aspects of your marriage.

This must include important time periods and significant aspects of your marriage, including the birth of children, job experience, professional qualifications. Also, if any abuse takes place describe the abuse – whether financial, emotional or physical or a combination.

Describe your lifestyle, who paid for what, where you holiday, the types and costs of these holidays’ etcetera.

Paint a picture of your marriage in words, so that your Divorce Attorney has a complete overview of your situation.

Which Court

Divorce proceedings can be initiated in the High Court or the Regional Court as both these Courts have jurisdiction to hear Divorce matters.
A Court has jurisdiction in a Divorce action if one or both Parties are:

• domiciled in the area of jurisdiction of the Court on the date on which the action is instituted; or
• ordinarily resident in the area of jurisdiction of the Court on the said date and has/have been ordinarily resident in South Africa for a period of not less than one year immediately prior to that date.

Divorce Attorneys normally issue Divorce Summons out of the High Court where the value of the estate is large, or the Divorce is complex.

The Summons Stage

Your Divorce Attorney will draft a summons and a particular of claim and they will ask you to confirm that you are satisfied with the document before it gets send out to Court for a Court Case Number.

Thereafter the Divorce Summons and annexures will be sent to the Sheriff of the Court and the documents must ordinarily be personally served by the Sheriff of the Court on your Spouse.

Default Judgement

If your Spouse fails to defend the Divorce Action, you can apply for default judgement against your Spouse and the Divorce can be finalized in a very short period.
Where the Defendant (your Spouse) fails to defend an action, it is reasonable to suppose that the Defendant is not disputing the Divorce.

Notice to Defend

If your Spouse defends the matter, they will file a Notice of intention to Defend the Divorce, where after they will file a plea (and counterclaim).

You will then have an opportunity to state your case against their counterclaim.

Discovery Phase

The Discovery Process is the phase where your Divorce Attorney must become a Detective. They must investigate if your Spouse is disclosing all their assets.

Both Parties’ must file what is called a Discovery Affidavit and normally only discovered documents can be used during the trial process.

Your Divorce Attorney can ask for specific information and documents and can apply to the Court for relief if your Spouse fails to co-operate.

Inspection of documents and other evidence is allowed except for communication that may be privileged, such as communication between an Attorney and their Client.

Pre-Trial and Case Management

After the Discovery Phase, the Divorce Attorneys will arrange for a Pre-Trial and if necessary, schedule Case Management before a Judge.

The purpose of Pre-Trials and Case Management is to reduce the issues in dispute and to ensure compliance with the Court’s Practice Directives.

Your input will be invaluable as you know your Spouse and their habits.

Experts

It is often necessary for one or both Parties to appoint experts during the Divorce for trial purposes. These experts will assist the Divorce Court to come to a decision.

These experts may include people such as Industrial Psychologist to determine spousal maintenance claims, or Forensic Accountants to determine the values of their estates.

Trial

When the Divorce matter is ready for trial, the one Party, normally the Plaintiff, will apply for a trial date and set the matter down for trial.

A lot of work gets completed as part of trial preparation as bundles needs to be prepared, pre-trial minutes must be filed, experts must be consulted with, subpoenas issued etcetera.

Due to the pressure of trials, a lot of Divorces gets settled the day before trial or on the Court’s steps. Very few Divorces proceed on trial as most matters become settled either in the beginning, the middle or on the trial date.

The Divorce Attorney or an Advocate normally present their Clients Divorce case whilst the Judge may ask questions to clarify issues. The duration of the Divorce trial will depend on many factors such as the amount of witnesses and the complexity of the Divorce.

Judgement

The Judge or Magistrate will decide on the Divorce matter and the Judgement can normally be taken on appeal or review if one or both Parties are unhappy with the Judgement, depending on the circumstances.

The Court will also decide on the issue of costs and the norm is that the unsuccessful Party pays the legal costs of the successful Party. The Court has a discretion with regards to the granting of costs.

Mediation and Settlement

Mediation is the process where Spouses get an independent person, normally an Attorney or Psychologist, to assist them to try and agree on the terms of the Divorce. The discussions that takes place is done on a “without Prejudice” basis and cannot be used in Court. It is “off the record”.

The Mediator normally issue a certificate stating that mediation was unsuccessful if they cannot assist the Parties with settlement.

Divorce Settlement talks can start at any stage of the proceedings and even the most contentious Divorce can suddenly become settled. It is advisable to only settle if you know that your Spouse is not trying to cheat you out of what you are legally entitled to.

Divorce Duration

An Opposed Divorce can take years to be finalized, whilst an unopposed Divorce can be finalized in a month or so. The Court where the Divorce summons gets issued out off also plays an important role. Divorcing in the High Court normally takes longer than Divorces in the Regional Courts.

# Pro Tip 6

Most Divorces are settled prior to trial – some during the beginning of the Divorce, some during the Divorce process and some Divorces, on the steps of the Court.

DIY Divorces

A DIY Divorce is a Divorce that is done by the Parties themselves. It is a very cheap option to get Divorce, but the consequences of not obtaining a Divorce Attorneys’ input can be profound – especially where there is Minor Children or more Complex issues at stake.

Managing Litigation – some practical ideas.

Be prepared: The Party that is best prepared have a higher chance of success. Get all your document and information ready as soon as possible – and long before the actual trial.

Obtain early advice: visit with your Divorce Attorney as soon as you consider a Divorce and find out what your rights and obligations are.

Consider Settlement: You should always consider settlement and mediation prior to commencing with litigation.

Consider the cost of litigation: Divorce litigation can be very expensive as you need to pay your Divorce Attorney and possibly several experts.

Divorce is all about strategy: Review your Divorce strategy on a regular basis with your Divorce Attorney.

Our Divorce and Family Law Expertise

We are a proudly South African Law Firm that boasts extensive experience as Divorce Attorneys and we are well respected by our Clients and Peers alike.  We have over the years handled thousands of family law matters, be it unopposed Divorces, opposed Divorces, international Divorces, child maintenance matters, domestic violence matters etcetera and our sought-after Divorce Attorneys regularly personally appear in Courts all over South Africa. 

Read More: 

Contested Divorce

Uncontested or Unopposed Divorce 

Legal Cost

Parental Rights and Responsibilities, and Guardianship