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The Divorce Process in South Africa

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The Divorce Process in South Africa

A divorce lawyer shares a house or property between spouses

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.

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

The Divorce Process in South Africa

This article is about the divorce process in South Africa. It explains the steps involved in obtaining a divorce in South Africa, including the requirements for filing for divorce, the options for resolving disputes, and the process of finalising the divorce. The article also discusses the role of the courts in the divorce process and the potential consequences of divorce, such as the division of assets and arrangements for children.

The following is an outline of the divorce process in South Africa, mentioning the steps involved, from filing the summons to the final trial and decision. We expand on the main steps further on in the article. 

Filing the Summons

The divorce process in South Africa starts with one spouse, the plaintiff, filing a summons for divorce at the relevant court. The summons must be personally served on the other spouse, the defendant, who has ten working days to respond.

Filing the Plea and Counterclaim

The defendant must file a plea, which is a legal document outlining their response to the divorce. They can also file a counterclaim, a claim for relief, such as a claim for a share of the property or custody of the children.

Discovery Process

After the plea and counterclaim have been filed, the next step is the discovery process. This is where both parties must disclose all relevant information and documents to each other. This ensures that each party has all the information required to prepare for the trial.

Pre-Trial Conference

The next step is the pre-trial conference. This is a meeting between the parties and their attorneys to discuss the case and try to settle it.

Trial

If the parties cannot settle, the case will proceed to trial. The trial is where evidence and testimony are presented to the court, and the court decides on the divorce and related issues.


The Divorce Process in South Africa Flow Diagram

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.

In South Africa, the consequences of a divorce are primarily legal and financial.

When a couple gets divorced, they will need to divide their assets and debts and may also need to make arrangements for spousal support and child custody.

The divorce process can be complex, especially if the couple has a lot of assets or there are disputes over issues such as child custody.

It is often helpful to work with an attorney during the divorce process to ensure all legal requirements are met and protect your rights and interests.

Read more about the “Practical Considerations before you get a Divorce.”

Divorce Requirements

You can get a Divorce in South Africa based on the irretrievable breakdown of the marriage relationship. This means 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. 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, is undergoing a prison sentence, is mentally ill, or is continuously unconscious.

In South Africa, the concept of irretrievable breakdown of the marriage relationship is a legal ground for divorce. This means that if a couple can show that their marriage has broken down beyond repair, they may be eligible to obtain a divorce.

In order to prove that the marriage has suffered an irretrievable breakdown, the parties must demonstrate that they have been living separately and apart for a period of at least one year. In addition, they must show that there is no reasonable prospect of reconciliation, either through counselling or other means.

While the irretrievable breakdown of the marriage relationship is a relatively straightforward legal concept, it can be emotionally challenging for couples to accept that their marriage has ended.

For this reason, many couples may try to seek reconciliation or counselling before pursuing a divorce.

In South Africa, couples considering divorce due to an irretrievable marriage breakdown must also consider any children of the marriage and their needs. The court will consider the best interests of any children when deciding on the divorce and any related matters, such as custody and support.

Ultimately, the decision to pursue a divorce due to an irretrievable breakdown of the marriage relationship is a personal one that must be made by the parties involved. However, it is crucial for couples to be aware of the legal requirements and considerations involved in this process and to seek legal advice if necessary.

# 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 challenging decisions 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.

Deciding to end a marriage is a significant and often difficult decision, and it is essential to consider all of these factors before moving forward.

Here are some signs that you may be ready to consider a divorce:

You have tried to repair the relationship: If you have tried to address the issues in your marriage through counselling or other means and have been unable to make progress, it may be time to consider a divorce.

You are no longer happy in the marriage: If you feel unhappy or unfulfilled in your marriage and do not see any potential for improving your relationship, it may be time to consider a divorce.

You have grown apart: If you and your spouse have grown apart and have different goals and priorities, it may be difficult to repair the relationship. In this case, a divorce may be the best option.

You have experienced abuse: If you have experienced physical, emotional, or financial abuse in your marriage, it is essential to prioritize your safety and well-being. In this case, a divorce may be necessary to protect yourself and move forward.

Ultimately, the decision to get a divorce is a personal one that depends on your individual circumstances and needs. It is important to take the time to consider your options carefully and to seek support and guidance if necessary.

# Pro Tip 2

If you think 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 usually cause more harm to the children than 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.

Selecting a divorce attorney to represent you is an important decision, as your attorney will advocate for your rights and interests during the divorce process.

Here are some suggestions you can take to help you choose the right attorney for your needs:

Research potential attorneys: Look for attorneys with experience handling divorce cases and a track record of success. You can start by asking for recommendations from friends, family, or other trusted sources or by searching online directories or professional association websites.

Consider the attorney’s fees: Divorce can be costly, so it is essential to consider the fees that different attorneys charge for their services. Be sure to ask about the attorney’s billing practices and what is included in their fees.

Ask about the attorney’s experience: During your consultation, be sure to ask the attorney about their experience handling divorce cases. This will give you a sense of their level of expertise and whether they are well-equipped to handle your case.

Consider compatibility: It is crucial to work with an attorney you feel comfortable communicating with and trust to advocate for your interests. Get to know the attorney during your consultation and consider whether you feel like you can work effectively together.

By following these suggestions, you can help ensure that you choose an attorney who is well-suited to your needs and can effectively advocate for you during the divorce process.

Read More about “How Much Does A Divorce Lawyer Charge?

Types of Divorces

You get Opposed or Contested Divorces and Unopposed or Uncontested Divorces.Opposed and unopposed divorce illustration

# 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 career 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 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 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 them.

Read more about “Unopposed or Uncontested Divorces – What You Need To Know!”

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 the 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, consider that the Family Advocate must accept and endorse this agreement reached between the parents to be in the best interest of the Minor Children.
  • Read more about “Relocation with Minor Children: Do you need your Ex’s consent?

Division of Assets and Liabilities: 

  •  When you decide on the division of the assets and liabilities, ensure 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 agree on the settlement terms.
  • Take into consideration any ancillary costs. This may include the transfer cost of immovable property if you must sell your house as part of the Divorce Agreement. Consider 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 want. 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 a Divorce Attorney represents the Spouses; 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, and they cannot agree on whether one Spouse must pay spousal maintenance to the other, the Divorce will be contested.

A typical contested Divorce can take a few months to a few years to be finalised 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 include who will be the primary caregiver of the Minor Children after the Divorce, child maintenance, and contact for the non-primary caregiver.
  • Division in terms of the Ante-Nuptial Agreement or 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 typically charges a nominal or agreed fee for an uncontested Divorce, a contested Divorce is typically 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 challenging 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 about both Spouses’ monthly spending habits and monthly income. That’s not just salary but any other funds each Spouse might receive from another source.
  • Marriage Certificate, the Unabridged Birth Certificates of the Minor Children, Ante-Nuptial Contract (if applicable).

    Divorce Planning Checklist.

 

Read more about “Contested or Opposed Divorces – What You Need to Know!

# Pro Tip 4

The Spouse that is best prepared typically has the best results in a Divorce. Work with your Divorce Attorney and supply the information required, as this is to your benefit. Don’t hold back; 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 do not know where your Spouse is?

Substituted Service v Edictal Citation Illustration

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 unknown where 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; an 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 may be effective: it could, in some cases, even sanction Service by fax or email.

Whatever the Court’s ruling will depend upon the facts presented in the Application.

Lastly, the Court will also decide when the Notice of Intention to Defend or the Notice of Opposition should be filed. The Notice of Motion will contain a provision for such a 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 field 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 the 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 before 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 of 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 a 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 hearing date will be pre-arranged with the Registrar of the High Court or the Regional Court.

Read more about “Edictal Citation and Substituted Service (How to Divorce a Missing Spouse)

# 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 determine your rights and responsibilities 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 usually a very stressful time for most people. If you understand what to expect, you will likely find Divorce easier.

Take a notepad and pen to make notes, so 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 concerning 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 essential time periods and significant aspects of your marriage, including the birth of children, job experience, and professional qualifications. Also, if any abuse occurs, describe the abuse – whether financial, emotional, 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 and Family Law Court Types Illustration

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 estate’s value is large or the Divorce is complex.

Read more about “Types Of Courts for Divorce and Family Law in South Africa.

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 sent 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, whereafter they will file a plea (and likely a counterclaim).

Plea and Counterclaim 

During divorce litigation in South Africa, the plea and counterclaim are documents that the parties file in the divorce case.

The plea is a document filed by the party which defended the divorce (the defendant) that sets out their response to the plaintiff’s claim.

The defendant will then file a counterclaim in response to the plaintiff’s claim as set out in the plaintiff’s summons and particulars of claim.

In the counterclaim, the defendant may either agree with the relief sought by the plaintiff or raise their own claims or defences. For example, the respondent may agree with the applicant’s request for a divorce but disagree with the proposed division of assets or arrangements for the children.

The plea and counterclaim outline the issues in the divorce case and provide the basis for the parties to negotiate a settlement or for the court to make a final decision if the parties cannot reach an agreement.

Discovery Phase of Divorce Litigation

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 usually, only discovered documents can be used during the trial process.

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

The discovery process is an essential part of the litigation process in South Africa, as it allows the parties involved in a legal dispute to gather and exchange information and evidence relevant to their case.

This process helps ensure that both sides have a fair and thorough understanding of the facts and issues at hand and can help to resolve the dispute.

The discovery process begins with the exchange of initial disclosures, which are a list of the documents and other information that each party plans to rely on during the litigation.

The parties must also disclose any witnesses they plan to call to testify at trial.

After the initial disclosures have been made, the parties can request further information and documents from each other through the discovery process.

This can include written questions and requests to produce documents and physical objects.

The discovery process can be a time-consuming and costly part of litigation, but it is crucial to ensure that both sides are fully informed and prepared for trial.

By gathering and exchanging relevant information and evidence, the parties can better understand the strengths and weaknesses of their case and can make more informed decisions about how to proceed.

Ultimately, the discovery process can facilitate a dispute resolution, whether through negotiation, mediation, or trial.

Pre-Trial and Case Management

The purpose of pre-trial and case management in the litigation process in South Africa is to help ensure that cases are handled efficiently and effectively and that they are ready for trial when they reach that stage.

This can involve various activities, including setting deadlines for exchanging information and evidence, scheduling hearings and other court appearances, and working with the parties to narrow the issues in dispute and identify any potential settlement options.

During the pre-trial and case management process, the parties may also be required to attend conferences or meetings with a judge to discuss the case’s progress and resolve any issues that may be hindering its resolution.

These conferences or meetings help to identify any potential barriers to progress and to develop strategies for overcoming them.

Ultimately, the goal of pre-trial and case management is to help the parties move the case towards a resolution as efficiently and effectively as possible, whether through negotiation, mediation, or trial.

By streamlining the litigation process and identifying any potential settlement options early on, the parties can avoid unnecessary delays and costs and focus on resolving the dispute in a timely and cost-effectively.

Experts

During a divorce trial in South Africa, using experts can be a valuable tool for gathering and presenting relevant information and evidence to the case.

Experts are professionals with specialised knowledge in a particular area, and their testimony can help the court understand complex or technical issues that may be at play in the case.

Depending on the specific issues, many different experts may be called upon to testify during a divorce trial. For example, financial experts may be called upon to testify about the value of assets or to provide information about the parties’ income and expenses.

You may call mental health experts to provide testimony about the impact of the divorce on the parties and any children involved. And other types of experts may be called upon to provide testimony about issues such as parenting plans, addiction, or domestic violence.

The use of experts during a divorce trial can be a powerful tool for helping the court to understand the facts and issues at hand.

By providing specialised knowledge and expertise, experts can help shed light on complex or technical issues and provide valuable insights that can inform the court’s decision-making process. As such, experts can be an essential resource for both parties during a divorce trial in South Africa.

Trial 

The trial process for a divorce in South Africa is a formal legal proceeding held in court and designed to resolve any outstanding issues between the parties. This can include issues related to the division of assets, custody and support of children, and spousal support.

The trial process generally begins with the parties’ opening statements, in which they present their case to the court and outline the facts and issues that they believe are relevant.

The parties then can present evidence and call witnesses to testify on their behalf. This can include documents, testimony from expert witnesses, and other evidence supporting their position.

After the parties have presented their case, the court will consider all the evidence and arguments and decide on the divorce and any related matters. The court may issue a ruling from the bench or take the case under advisement and issue a written ruling at a later date.

The trial process for a divorce in South Africa can be complex and time-consuming, but it is a crucial step in ensuring that the parties receive a fair and just resolution to their dispute.

By considering all of the relevant evidence and arguments, the court can decide the needs and interests of all parties involved.

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

Due to the pressure of trials, many Divorces get 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 number of witnesses and the complexity of the Divorce.

Judgement

When a divorce court grants a judgment in South Africa, it means that the court has made a final decision in the divorce case.

This decision may be based on the pleadings and evidence presented by the parties or on the terms of a settlement agreement reached between the parties.

A judgment in a divorce case may include orders on various issues, such as the granting of the divorce itself, the division of assets, the payment of spousal support, and the custody and parenting arrangements for any children of the marriage.

Once a judgment has been granted, it is considered a legally binding order that must be followed by the parties. If one of the parties does not comply with the terms of the judgment, the other party may have the option to seek enforcement of the judgment through the courts.

The Judge or Magistrate will decide on the Divorce matter. 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 victorious Party. The Court has discretion concerning the granting of costs.

Divorce Mediation and Settlement

Divorce mediation is another mechanism in which a neutral third party, called a mediator, helps divorcing couples reach agreements on issues related to their divorce, such as the division of assets, custody and parenting arrangements for children, and spousal support.

In South Africa, divorce mediation is a voluntary process that can be used as an alternative to traditional litigation in the divorce process.

The couple is not required to accept any decisions made by the mediator, but instead helps them communicate and come to an agreement on their own.

The mediator can provide information, help the couple identify their interests and needs, and facilitate discussions to help the couple reach a mutually acceptable resolution.

Divorce mediation can be a faster and less expensive option than going to court, and it can also be less stressful and more private.

It can also be a good option for couples who want to maintain control over the outcome of their divorce and who want to preserve their relationship, particularly if they have children together.

The discussions that take place are done on a “without prejudice” basis and cannot be used in Court. It is “off the record”.

The Mediator issues a certificate stating mediation was unsuccessful if they cannot assist the Parties with the 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 only to settle if you know that your Spouse is not trying to cheat you out of what you are legally entitled to.

Divorce Duration (How long does a divorce case last?)

The length of a divorce case in South Africa can vary depending on several factors, including the complexity of the issues involved and the willingness of the parties to cooperate and reach agreements. In some cases, a divorce can be finalised relatively quickly, while in others, it can take several years.

The divorce process in South Africa generally involves several steps, including the filing of the divorce summons, the serving of the summons on the other party, the exchange of documents and information, and the possibility of mediation or other alternative dispute resolution methods.

If the parties cannot agree, the case may go to court for a final decision.

It is also possible for a divorce to be contested, which can prolong the process. In a contested divorce, the parties cannot agree on one or more issues and must go to court for a judge to decide the outcome.

Contested divorces take longer to resolve as they involve additional court hearings and may require the parties to present evidence and testimony.

An Opposed Divorce can take years to finalise, while an unopposed Divorce can be finalised in a month or two.

The Court where the Divorce summons gets issued also plays an important role. Divorcing in the High Court typically takes longer than Divorces in the Regional Courts.

# Pro Tip 6

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

DIY Divorces

DIY divorces, or do-it-yourself divorces, are a way for individuals in South Africa to handle their own divorce without the assistance of an attorney.

While DIY divorces can be a cost-effective option for some individuals, they can also be complex and time-consuming and may not be suitable for everyone.

DIY divorces can be challenging for individuals who are not familiar with the legal system or who do not have experience navigating the divorce process. It can be challenging to represent oneself in court, and individuals who choose to handle their own divorce may face many challenges, including:

  • Gathering and presenting evidence and documents
  • Interpreting and applying the law
  • Communicating effectively with the other party and the court
  • Understanding and advocating for their own rights and interests

While DIY divorces can be a cost-effective option for some individuals, it is essential to consider the pros and cons before proceeding. It may be more beneficial to seek the assistance of an attorney to ensure that the divorce is handled correctly and that the parties receive a fair and just resolution.

Managing Divorce Litigation – some practical ideas.

Be prepared: The best-prepared party has 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 your Divorce Attorney as soon as you consider a Divorce and find out your rights and obligations.

Consider Settlement: You should always consider settlement and mediation before commencing litigation.

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

Divorce is all about strategy: Review your Divorce strategy regularly with your Divorce Attorney.

Reasons why you should consider Martin Vermaak Attorneys as your Divorce Attorneys: 

Experience and expertise: We have, over the years, handled thousands of family law matters, be it unopposed Divorces, opposed Divorces, international Divorces, child maintenance matters, or domestic violence matters and our sought-after Divorce Attorneys regularly personally appear in Courts all over South Africa. Our experience includes matters with complex financial issues, custody disputes, and other common challenges in divorce cases.

Personalised representation: We have a personalised approach to representing divorce clients. Martin Vermaak Attorneys works closely with our clients to understand their unique needs and goals and develop a tailored strategy to achieve the best possible outcome.

Strong reputation: Martin Vermaak Attorneys’ have a fantastic reputation within the legal community and among past clients. 

Compassionate and understanding: We have a compassionate and understanding approach with divorce clients as we understand that they are going through a difficult and emotional time.

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