Divorce procedure in South Africa can be both stressful and expensive.
Divorce means the legal termination of a marriage by means other than death of a spouse. Note that legal separation does not exist under South African law: you are either married or you are not.
Divorce procedure in South Africa
The divorce procedure can be slow and expensive in South Africa. Added costs and loss of rights can occur if the process is not handled by divorce lawyer experts.
South African courts encourage parties to reach settlements before the divorce reaches court, especially in cases of couples with minor children.
Your Content Note that the divorce process may be halted at any time after the summons if the parties reach a settlement agreement and this is submitted to the court.
The divorce procedure in South Africa comprises the following steps:
- Arrange a consultation with Divorce Lawyers South Africa. We will ask you questions about your life, to assess if the divorce will be opposed or unopposed by your future ex-spouse.
- Draft a divorce summons – this is best if specialist attorneys like Divorce Lawyers SA draft this in the correct way to avoid issues later
- The summons is issued by the court on behalf of the person launching the divorce action (called the Plaintiff).
- It includes details of both parties, where and when they were married, and what the plaintiff wants the divorce order to determine
(this may include details of distribution of wealth and debt, maintenance and alimony payments, and issues of child custody, access and maintenance. If this is not done correctly and does not contain the information as required, this can be costly in time and money.)
- The summons is delivered by the Sheriff to the other spouse (called the Defendant).
Get expert divorce lawyers to draft your divorce summons.
- their response to the contents of the divorce summons. This is called a plea.
- Together with the plea, the defendant delivers a counterclaim document, which sets out what the defendant wants the divorce order to determine.
If the defendant does not deliver a plea and counterclaim then the court may, after a set period of time, issue the order of divorce according to the conditions requested in the summons. This is known as an uncontested divorce in South Africa.
- The plaintiff may now, within a set period of time, deliver to the court a document responding to the defendant’s plea.
- This is called the plaintiff’s plea to defendant’s counterclaim and sets out their response to the defendant’s plea.
- In most cases this is the end of the plea part of the divorce process. These documents are together referred to as the pleadings.
- The plaintiff now applies to the court for a trial date.
- This date varies according to the type and location of the court chosen. If the divorce is filed in the High Court, the court date may be a year or more in the future. Divorce proceedings filed in a magistrate’s court receive earlier court dates depending on how busy the court is.
Hire Divorce Attorneys Cape Town to advise you on divorce court dates in different locations in South Africa.
- Under South African law, all documents to be used by either party in a trial must be revealed to the other party before the court date. This is called a discovery process.
- After the pleadings close each party’s divorce lawyer will request the other party to disclose and provide copies of all documents they intend to use to support their arguments in court.
- These include a variety of financial documents such as bank and credit card statements, share certificates, documents proving ownership of assets or debt and more.
- In some cases, your divorce attorney may have to issue summons to companies or institutions to deliver required documents. If you do not hire specialised divorce attorneys, this can get expensive.
- In some divorces one party may attempt to hide assets from the court, or even remove documents proving asset ownership from the spouse’s access.
We strongly recommend that you meet with Divorce Attorneys Cape Town at the first suspicion of divorce so that we can advise you on what documents should be copied to fully document all assets in the marriage.
- In cases where the parties have not managed to reach a divorce settlement agreement the divorce will go to trial and the court will decide who gets what.
We repeat that divorce trials are expensive and best avoided – Divorce Attorneys South Africa urges clients to reach a settlement agreement directly or through a process of mediation if at all possible before going to trial.
What needs to be decided by the end of the divorce procedure
Before a marriage can be terminated these important factors must be decided:
Division and Distribution of Property and Debt
It must be determined who gets what when getting divorced in South Africa, from holiday homes to iPads and pets.
For couples married in community of property the division of property can be a time consuming and complicated divorce process, and some assets may have to be sold and liquidated.
For couples with a prenuptial agreement/antenuptial contract without accrual, distribution of property is a much simpler divorce process, but there may be practical questions and issues to be decided.
If you are starting the divorce process and you were married with a prenuptial agreement with accrual need to complete individual estate valuations so that accrual can be measured and allocated according to their agreement.
Spousal Maintenance or Alimony (Spousal Support)
During a marriage both parties have a duty to support each other.
When the marriage ends, South African divorce law favours the principle of a ‘clean break’, but where one party has been supported for some time or is unable to support themselves spousal support may be granted, but this is often for a limited period of time.
Maintenance or support for a spouse is more common for couples with children.
Find more information about Spousal and Child Maintenance in South Africa
Divorce Lawyers South Africa have years of practical experience matters of spousal support and help their clients to find optimal solutions to this matter.
Custody of Children and Access to Children: The Parenting Plan
If a couple have children then there are other issues that must be decided before a divorce in South Africa can be finalized:
- Where and with whom will the child or children live?
- Who is entitled to contact the child or children?
- Who will support the child or children financially?
- Details of the child or children’s schooling and/or religious instruction.
While these issues may be decided separately, it is preferred that parents agree a parenting plan in which these issues are decided by the parents jointly. This provides a clear roadmap for the child or children’s future and can help avoid later problems and complications.
Where parents are unable to agree a parenting plan a neutral third party may be called upon for mediation and guidance.
Unopposed/Uncontested Divorce procedure in South Africa
Divorces in South Africa that are not contested in court helps minimize the stress and cost of divorce, and are in most cases preferable for all parties.
What is the unopposed/uncontested divorce process in South Africa?
- One party sues for divorce with full details of the settlement in the summons
- the other party does not contest the divorce
- Divorce is granted according to the terms and conditions contained in the summons.
In many cases the parties will have jointly agreed to the conditions beforehand.
Unopposed divorces can be finalized in as little as four weeks and dramatically reduce divorce costs.
Divorce Mediation in South Africa
The contested divorce process can be prohibitively expensive and subject to long delays. This can take years to resolve, leaving both parties in a state of legal and emotional uncertainty and demanding a heavy emotional toll.
Where parties have difficulty agreeing terms for a divorce procedure, or are pursuing a contested divorce, a mediator may be called in to help them reach settlement. Read more detailed information about Divorce Mediation in South Africa.
The divorce mediator is an independent third party who works with both parties to develop a mutually acceptable settlement. They advise both parties of the legal options and also different consequences they could face if the matter goes to court.
Read more about the Divorce Mediation process and how expensive process with some mediators charging R1000 per hour or more, but if it results in a settlement it is normally significantly cheaper and faster that going to court.
The Divorce Mediation Process
Generally the Divorce Mediation process would occur as follows:
Usually a 30 minute free informative consultation is offered for you to meet with the Mediator and discuss any uncertainty regarding
- Divorce Mediation is agreed upon
- Divorce Mediator meets with Parties involved
- Mediated Negotiation
- Agreement Review
Call Divorce Attorneys now to have someone fighting hard for your best interests in your divorce proceedings.
- Officialising the agreements
Need help with your divorce procedure?
Divorce Attorneys South Africa works with you to minimize the stress and expense while protecting the rights of our clients and their children (if any) in the divorce process.
Visit SDLaw.co.za/divorce for more