One of the hardest things that any couple facing the dissolution of their marriage must face is the divorce process. Whether your relationship has been brief or long-term, going through a divorce is a challenging endeavor and often wrought with grief, heartache, confusion, and anger. If you have reached the stage of your marriage where you can’t go on as you are, you might be interested in knowing the divorce procedures in South Africa.
Divorce procedures in South Africa include the plaintiff drafting a divorce summons, having that summons issued by the court on their behalf, whereby the sheriff will deliver it to the defendant. After this, the procedures will differ depending on whether the divorce is uncontested or contested.
The circumstances surrounding your divorce will dictate which procedures you will need to follow. There are two main types of divorce: uncontested and contested. Knowing under which circumstances you can apply to the courts for a divorce and the process you will need to follow will benefit you in your journey and might relieve some initial stress and uncertainty.
What Do South African Divorce Procedures Entail?
Divorce procedures can be a slow and expensive journey if the process is not handled correctly. South African courts prefer and encourage the affected parties to settle before the divorce reaches court, especially in cases that involve minor children.
Before you even start the process, you will need to be able to give a reason why you are filing for divorce. From there, you can begin the process, including where you will file for your divorce and what procedures you will need to follow.
Under What Circumstances Can You File For Divorce?
According to the Divorce Act 70 of 1979, South African law requires you to show evidence as to why you are requesting a divorce. Several reasons entitle you to a divorce, and these include:
- If you or your spouse are mentally ill or continuously unconscious.
- The irretrievable breakdown of your marriage.
Where Can You File For Divorce In South Africa?
In South Africa, only a High Court or Regional Court can grant you a divorce. A court will have jurisdiction in a divorce matter if either both or one of the parties involved:
- Live in the court’s jurisdiction area on the date the action is instituted.
- Or one or both of the parties involved are ordinary residents in the area of the court’s jurisdiction on the said date, or they have been a resident in the Republic for not less than one year before that date.
Starting Divorce Procedures In South Africa
You will need to follow the following steps to start your divorce procedure:
- Visit your Regional Court or the High Court.
- A clerk will be able to help you put together a summons and a Particulars of Claim, which will include the reasons for your divorce, your personal details, the details of the custody of your children, and the division of your property and assets.
- You will need to purchase a stamp to attach to the summons.
- Ensure that you make copies of the documentation and then issue the documents to the clerk, who will sign them and give you a reference number.
- The clerk should be able to help you find a court sheriff who will take the documents and deliver the summons to your spouse, after which they will issue a return of service proving that they served the documents.
From here, your spouse, referred to as the defendant, will have 10 days (if they live in the same area) or 20 days (if they live in a different province) to oppose the divorce.
If the defendant does not wish to oppose the divorce, they do not need to file any documents, and the High Court or the Regional Court can add your divorce to their court roll. They will then issue you a date to appear in court. The plaintiff (the person applying for the divorce) will then need to appear in court, where a judge will ask you questions confirming information.
Once this is complete, they may end your marriage if they are satisfied with your reasoning and that there is no way to preserve your marriage through counseling or other means. This type of divorce is called an uncontested divorce, and it is the least costly for all involved. It is also the least time-consuming as you can finalize your divorce within weeks rather than years.
What Are The Divorce Procedures For A Contested Divorce?
Unfortunately, not all divorces are amicable, and in some cases, the parties involved do not agree with one another on the terms of the divorce. This type of divorce is called a contested divorce, and it involves more paperwork, time, money, and court dates.
In these instances, the divorce procedures will go as follows:
- The defendant will be required to file a reply, called a plea, to the Particulars of Claim within the required time frame.
- You may then, as the plaintiff, file a Replication which is an answer to the defendant’s plea which serves one of two purposes, either you wish to admit to allegations made in the plea or to raise a special or affirmative reply in the nature of avoidance or confession. You do not need to submit a replication if you wish to deny the allegations.
- Pleadings will then close.
- The plaintiff will then apply to the courts for a trial date. If you are applying at the High Court, you might have to wait up to a year for an available date.
- Case management, discovery process, and pre-trial preparation will now occur.
- In most cases, you will now have a pre-trial conference to see if you can settle before going to court. You will go to trial if the two parties cannot agree on a settlement.
- You will now have a trial. In this instance, you will need to be prepared to provide the required documentation, and you might need witnesses to aid your case.
- After the trial, you can appeal your case or accept the outcome.
- You can continue with settlement discussions and mediations at any stage during these proceedings.
Depending on your circumstances, divorce procedures in South Africa can be a slow, tedious, and expensive affair. If you have an amicable divorce, have not been married long, have no children, or have no significant assets to divide amongst yourselves, you can complete the process yourself. Although even in these circumstances, it would be beneficial if you engaged the help of a divorce lawyer who can advise you on the correct way to fill out the forms so that there are no issues further down the line.
On the other hand, if you have any issues with your soon-to-be ex-spouse, significant assets, or disagreements on child custody, it would be in your best interests to hire an experienced divorce lawyer. They will be able to help you complete the process with the best possible outcome, at the least expense, and in a timeous manner.
Our litigation team at Burnett Attorneys & Notaries are some of the best, known for their expertise in specialist family law and handling South African divorces in a sympathetic, civilised, and positive manner. We understand that every situation is unique, and we strive to provide a tailormade, multifaceted approach to your requirements. If you have any questions or require legal assistance, please don’t hesitate to contact us. We will be happy to aid you in any way we can.