You want to get a divorce but aren’t sure where to start or what to do
You want to start a divorce. It’s a frightening prospect. You entered married life full of hope, and the breakdown of your marriage is inevitably sad and disappointing. But ending it and starting again is daunting, which may be why people stay in marriages long after the relationship has soured. You may also be wondering which way to turn when it comes to starting divorce proceedings. Do you need a divorce attorney? Can you do it yourself? How much does a divorce cost? How do you deal with parenting arrangements?
Let’s look at how to get a divorce step by step.
Step 1 – Can you do it yourself?
It is possible to handle your divorce yourself, without legal advice. This is often called a “DIY divorce” or sometimes an “online divorce”(it is not). We don’t advise it, because there are many details you may not be aware of, and a good divorce lawyer will make sure your interests are properly protected. However, there are some circumstances when you can get a divorce yourself and it makes financial sense, for example – if you have no children, are married out of community of property without accrual, and do not have a shared asset such as a house you purchased jointly. If you can make a clean financial break and you both agree on the terms of your divorce, then a DIY divorce can save you a lot of money.
If you choose this route, you must still go to court. All divorces in South Africa are granted either in the High Court or the Divorce Court, as a division of the Magistrate’s Court. A judge must grant a divorce order. The procedure is as follows:
- Sign the Deed of Settlement
- Make copies of all documents
- Go to court and issue your summons and annexures at the Registrar of Court
- Take the documents to the Sheriff of the Court to serve on the defendant. To speed up the process, you can go together
- If you have minor children, go to the Family Advocate
- Go back to court to get a date for the hearing
- Appear in court on that date
But unless your split is very amicable and you are confident of 100% agreement, you would be wise to appoint a good family lawyer to get a divorce.
Step 2 – consult a family lawyer
If you are married out of community of property with accrual, or in community of property, then there is a financial settlement to work out. If one of you has a pension fund, your finances are even more complicated. At this stage you must decide if your divorce will be uncontested, contested or mediated.
An uncontested divorce is the quickest and least costly option and is generally less stressful than other types of divorce.
If you both agree divorce terms, such as maintenance, division of assets, and child care and contact, you can appoint an impartial attorney who will represent both spouses. The divorce attorney will draft the official settlement agreement, you both sign it, and it is made an order of the court. An uncontested divorce is often finalised in weeks, not months.
An uncontested divorce will cost anywhere from R7 500 to R15 000, depending on the complexity of the divorce.
The hard way – contested divorce
A divorce is contested when there is great animosity between the spouses and they cannot agree the terms and conditions of their divorce. A contested divorce can lead to multiple court appearances, and ultimately the court decides the terms of the divorce. Legal costs can spiral, the emotional impact can be severe, and it may take three years or longer to get a divorce.
Contested divorces are to be avoided if at all possible. Because a contested divorce can drag on for years, it is not possible to give an indication of cost. In a contested divorce the attorney will usually charge an hourly rate and will be unlikely to quote you a fixed fee. You may be asked to pay a retainer, which your family lawyer will deposit in a trust account and draw on as costs are incurred. You will receive a monthly statement of the lawyer’s time and the services of any experts consulted. If the case goes to trial or is even prepared for trial, you can expect considerable hours involved and associated high costs.
The third way – mediated divorce
Provided you and your spouse can be in the same room together, even if you don’t agree on everything, a mediated divorce can be the middle ground between the harmony of an uncontested divorce and the acrimony of a contested one. In a mediated divorce, an attorney and/or a professional mediator will help you negotiate and reach agreement.
A mediator is an impartial trained professional who will help you reach a settlement that lets both of you move on. Mediators are usually appointed by the attorney who provides the legal advice.
Once agreement is reached through mediation, the attorney can draft the official settlement agreement, which you both sign, as per an uncontested divorce. It takes around three months to get a mediated divorce.
A mediated divorce will incur mediator’s fees in addition to the divorce lawyer’s fees. The total cost will be between R10 000 and R30 000.
Step 3 – Go to court
The procedure for mediated and contested divorces is roughly the same as for an uncontested divorce, but is usually more complex:
- A divorce summons is drafted.
- 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, date and place of marriage, and what the plaintiff wants the divorce order to determine.
- The summons is delivered by the Sheriff to the other spouse (called the defendant).
- The defendant responds to 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. Or the defendant does not contest the divorce and the plaintiff’s terms are met without amendment.
- If the defendant makes a response, the plaintiff may make a plea to the defendant’s counterclaim.
- This is usually the end of the plea process. The documents are known as the pleadings.
- The plaintiff applies to the court for a trial date.
- 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, such as bank and credit card statements, share certificates, documents proving ownership of assets or debt, etc.
- If the spouses do not manage to reach a divorce settlement agreement, the divorce will go to trial and the court will decide who gets what.
Stumbling blocks along the way
Child care and contact
When you get a divorce, custody (“care”) of any children of the union is normally granted to a single parent, with reasonable access (“contact”) awarded to the other parent. Or the parents may opt for joint (shared) custody. If parents cannot agree on the care arrangements for children, the court may insist on a parenting plan. A parenting plan is a good idea even in an amicable divorce because it defines the roles and powers of each parent. The plan also sets out the parenting time schedule and other details, such as holiday arrangements.
Where there is an irresolvable dispute, the Family Advocate may be called in. The Family Advocate is a state official who assists divorcing parties to reach an agreement on issues such as care, contact and guardianship. In the absence of parental agreement, the Family Advocate makes a recommendation to the court with the best interests of the child uppermost in their guidance.
In South African law, no one with the ability to support themselves is entitled to maintenance. However, a court may order rehabilitative maintenance, after considering the couple’s current and potential future financial means, earning capacities, financial needs and obligations, the length of the marriage, and other factors. With rehabilitative maintenance, the court will estimate how much time it will take for the relevant spouse to gain the skills to re-enter the job market.
Step 4 – Self-care
When you get a divorce it is more than the dismantling of a legal union. It is the unravelling of a binding thread that, at one time, seemed permanent. The emotional consequences, even of an uncontested divorce, must not be overlooked. Sadness, depression, anxiety, anger, and a sense of failure are very common and normal responses to the divorce process, and they may persist long after the divorce is granted.
If you are feeling overwhelmed by the emotional impact of your divorce, or are struggling to build your post-divorce life, don’t be afraid to seek help. A professional counsellor, psychologist or therapist can help you come to terms with your loss (for divorce is a form of loss) and explore strategies for moving on.
If you want to get a divorce and need help to get started, talk to our divorce attorneys. We’ll help you explore your options. At SD Law we are known for our EQ and our sensitive approach to family law. We’ll handle your case with compassion without sacrificing efficiency. Contact Simon on 086 099 5146 or email email@example.com for a discussion in complete confidence.
For more detailed information on how to get a divorce, download our Guide to Divorce.