Divorce law in South Africa is governed by the Divorce Act, which sanctions the legal process in terms of which a civil marriage, a customary marriage, civil union or marriage concluded in terms of religious rights is dissolved by a court of law.

 

What is a divorce?

A divorce is the termination of a marital union, the canceling of the legal duties and responsibilities of marriage and the dissolving of the bonds of matrimony between a married couple.

 

Grounds for a divorce

A marriage may be dissolved by a court on the following grounds:

  • the irretrievable breakdown of the marriage; or
  • the mental illness, or the continuous unconsciousness, of a party to the marriage.

 

What is the irretrievable breakdown of the marriage?

When the court is satisfied that the marriage relationship between the parties to the marriage has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marital relationship between them.

Circumstances that a court may accept as evidence of the irretrievable breakdown of a marriage:

  • The parties have not lived together as husband and wife for a continued period of at least one year immediately prior to the date issuing summons for divorce.
  • The defendant has committed adultery and the plaintiff finds it irreconcilable with a continued marriage relationship.
  • The defendant was declared a habitual criminal and is undergoing imprisonment.

 

What constitutes mental illness or the continuous unconsciousness of a party?

Mental Illness

The court is satisfied that the defendant (1) has been admitted as a patient to an institution in terms of the reception order; (2) is being detained as a state patient at an institution or other place specified by the Minister of Correctional Services; or (3) is being detained as a mentally ill convicted prisoner at an institution.

Continuous unconsciousness

A court may grant a decree of divorce on the grounds that the defendant is, by reason of a physical disorder, in a state of continuous unconsciousness, if it is satisfied that:

  • the defendant’s unconsciousness has lasted for a continuous period of at least six months immediately prior to the institution of the divorce action; and
  • after having heard evidence from at least two medical practitioners, one of whom must be a neurologist or a neurosurgeon appointed by the court, there is no reasonable prospect that the defendant will regain consciousness.

 

Types of divorce in South Africa?

Uncontested divorce

The process proceeds quickly if both parties agree to the divorce and reach a settlement on issues of alimony (spousal support), child custody, child support, distribution of property and division of debt.

Uncontested divorces are the quickest and cheapest option. They involve both parties working with the same attorney to forge an agreement. This agreement then goes to the court.

Mediated divorce

Mediation is when a third party, that has a legal background, helps you and your partner reach an agreement. A mediator assists you in dividing your assets and in finding an agreement over child custody. They can write your settlement agreement. The agreement must be presented to the court when applying for the divorce.

Contested divorce

When a couple cannot agree on the terms and conditions of the divorce, this is considered to be a contested divorce, and it usually means going through a court proceeding or trial to resolve any issues, with each party employing their own lawyer. This is generally rather lengthy and expensive.

 

Procedure for types of divorces

Whether you have a contested or uncontested divorce, you will need to follow these steps:

  • Visit the High Court or a Family Court in your area.
  • Ask a clerk for help with a summons, which will have the reasons for your divorce, personal details, details on custody of children and property.
  • You will need to attach a stamp and pay for it.
  • You will need to make copies and issue the documents to the clerk.
  • He/she will sign it and give a reference number.
  • You will need to give the original copies to the sheriff of the court. The clerk can help you find a sheriff.
  • The sheriff will deliver the summons to your partner. The summons will have a date by which they can counter-claim.
  • If your spouse agrees to the terms and does not counterclaim, your divorce will be added to the high court roll and you will appear in court.
  • The plaintiff (the person making the case) will appear in court where a judge will ask questions to confirm information and may end your marriage.
  • If your partner, however, disagrees with the terms in the summons, they’ll counterclaim.
  • He/she will have to create a document with their defence.
  • You will have a trial. Be prepared to provide documents that will be used during the trial.
  • You will appear in court and may need witnesses to help your case.
  • The judge will listen to both sides and conclude your marriage based on the information they’ve read and heard.

It can be quite a complicated process, with lots of legal aspects to navigate. As always, it’s absolutely vital that you seek professional legal help to assist you with the above procedure. 

Mediation

  • The mediator will listen to both sides and give possible solutions.
  • They will help you to reach an agreement on custody of your children and dividing your property.
  • You will write a settlement, with their help, and sign it.
  • One partner will be the defendant and the other the plaintiff.
  • The defendant will receive the summons and settlement agreement.
  • The plaintiff will go to court and request to have the case added to the high court roll.
  • When the case is added, the divorce will be concluded.

 

Considerations that you should prepare for

Custody and access to children

If there are children born from the marriage, custody and access arrangements must be considered and agreed on. If common ground cannot be reached, the Court will make a decision that is in the children’s best interest (with the help of the Family Advocate).

What’s more, even if the terms regarding minor children are met, the settlement agreement should be referred to the Family Advocate for endorsement.

Maintenance

Both parents have a legal duty to support their children, but if a couple can’t agree on the maintenance amount that must be paid, the court will make a decision that is reasonable. What’s more, in the unfortunate event that you cannot come to an agreement, it might be a good idea to take the matter to the Maintenance Court as a separate issue. This will likely speed up the actually divorce proceedings and reduce the costs.

Dividing Property

The division of property, debt and assets must also be sorted out. If the couple can’t agree, their belongings will be divided according to the marital regime they married into. This depends on whether or not an ante-nuptial agreement was signed.

 

Getting help

You do not need to get through your divorce on your own. Book a consultation today with our specialist divorce lawyers to receive the best legal counsel for your family.

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