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Divorce in South Africa is a legal process governed by statute and court procedure. If you are considering Divorce, it is important to understand the legal requirements, the types of Divorce, how summons are served, how long the process may take, and what happens if your spouse cannot be located. This guide explains the Divorce process in South Africa in clear, structured terms so that you understand what to expect.
This article is for general informational purposes only and does not constitute legal advice.
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.
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!
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.
The decision to proceed with Divorce is often emotionally complex. While this is a personal decision, it is important to distinguish between emotional considerations and the legal threshold for Divorce in South Africa, which is irretrievable breakdown.
If you are uncertain, it may be helpful to obtain legal information about your rights and responsibilities before making a final decision.
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.
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.
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.
You get Opposed or Contested Divorces and Unopposed or Uncontested Divorces.
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.
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.
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 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:
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:
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.
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.
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 must be drafted and applied for in accordance with the applicable court rules.
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 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
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.
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.
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.
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.
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:
Divorce Attorneys normally issue Divorce Summons out of the High Court where the value of the estate is large, or the Divorce is complex.
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.
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.
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.
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.
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.
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.
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 need 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 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.
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 discretion with regards to the granting of costs.
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 take place are done on a “without prejudice” basis and cannot be used in Court. It is “off the record”.
The Mediator normally issues a certificate stating that 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 to only settle if you know that your Spouse is not trying to cheat you out of what you are legally entitled to.
An Opposed Divorce can take years to be finalised, whilst an unopposed Divorce can be finalized in a month or so. The Court where the Divorce summons gets issued out of also plays an important role. Divorcing in the High Court normally takes longer than Divorces in the Regional Courts.
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.
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 are Minor Children or more Complex issues at stake.
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.
We are a South African law firm practising in Divorce and family law.
Our work includes unopposed and opposed Divorce matters, child maintenance, domestic violence matters, relocation disputes and matters involving complex asset division.
We regularly appear in the High Court and Regional Court in Divorce proceedings.
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