The divorce process in South Africa is relatively simple. This article outlines everything you need to know.
Civil marriages, civil unions and religious marriages conducted by registered marriage officers can only be dissolved by order of the court. The divorce process is started by serving a summons. This must be served personally to the defendant by the sheriff of the court.
There are two types of divorces: Uncontested/unopposed and contested/opposed.
An uncontested divorce is one where both parties work together and agree on the divorce terms. The same unbiased and impartial attorney is consulted. There is no formal trial and only the plaintiff (the one who filed for divorce) appears in court.
Both parties agree before the divorce on how their assets will be divided, and if there are children involved, how custody will be shared and where the children will live.
A settlement agreement (including a parenting plan when children are involved, endorsed by the Office of the Family Advocate) is then drafted with the help of the attorney and signed by both parties. It is then made an order of the court.
The registrar will then allocate a date and the divorce will be set down on the court roll. The plaintiff appears personally in court before a judge or magistrate to conclude the divorce on the date set down.
Uncontested divorces are the most cost-effective and quickly finalised divorces. They are often over in as little as 4 weeks.
Contested divorces, if they proceed to trial, can take between 2 to 3 years.
This divorce process consists of various stages:
- application for and set down of trial date
- discovery of documents
- pre-trial conference
The formal documents in a divorce are referred to as pleadings. These can include the summons, particulars of claim, notice of defence, plea, and counterclaims.
- Summons: The divorce action starts on the date that the summons is issued. If the defendant (the person receiving the summons) wants to dispute the plaintiff’s claim, he/she must serve a notice of appearance within 10 days (if parties live in the same jurisdiction) or 21 days (where parties live in different provinces).
- Plea: After serving this notice of defence, the defendant must deliver a plea within 20 court days. In the plea, the defendant must either admit/deny/confess/avoid all the material facts alleged in the particulars of claim. Failure to submit this plea can result in judgement given against the defendant in their absence.
- Counterclaim: The defendant may deliver a counterclaim against the plea. This can be followed by a further plea to the counterclaim by the plaintiff.
Application for and set down of trial date
The plaintiff then makes an application for a trial date, allocated by the registrar. If this is not done within the prescribed number of days after the pleadings have been closed, the defendant may do so.
Discovery of documents
In the period between close of pleadings and waiting for a trial date, there is a process called discovery. This is the where each party demands to see material the other party intends to use at trial. This may include bank statements, shareholdings in companies, credit card statements, bond accounts and tax returns.
The court may direct that an informal conference be conducted in the presence of the judicial officer in chambers, in order to consider a settlement of disputes.
Trial proceedings commence with both parties or their legal representatives being given an opportunity to deliver an opening address, in which the court is informed of the issues that are in agreement and those that are in dispute between the parties.
A divorce trial must culminate in the granting of judgement.
Other types of divorces in South Africa:
A default divorce is a form of uncontested divorce. A court will grant a divorce by default if a divorce summons is served and the plaintiff does not respond.
Do-it-yourself (DIY) divorces
DIY divorces are concluded without the help of an attorney and are a very affordable alternative.
It can be achieved in two ways:
- The local magistrate’s court provides the necessary forms and guidance to conclude a divorce independently.
- There are also online divorce services that guide parties through the entire process.
DIY divorces work well when:
- The divorce is uncontested
- There are no substantial assets or investments to divide
- There are no disputes regarding children
In mediation, an independent third party will work with both sides to try to reach a settlement agreement. Once a settlement agreement has been drafted with the help of the mediator, the parties can request their respective attorneys to review it.
Mediation is advisable if:
- both partner agree that they can negotiate in a fair manner
- children are involved
- there is a limited budget
- differences need to be resolved as soon as possible
Every aspect of a divorce can be mediated, from the division of assets to the question of maintenance. Parties can agree to mediation before or after legal action has been instituted.
In round table settlements legal representatives informally exchange their clients’ financial information and meet with the parties to settle the divorce. A settlement agreement is then drafted, and the plaintiff appears in court to get the settlement agreement made an order of court.
These negotiations are often referred to as roundtable settlement negotiations, and the details of these negotiations may not be disclosed at the trial if it should go ahead.
In collaborative law, each client’s legal representative is present during the negotiations to provide support and legal advice and to manage the process. Collaborative divorces are not yet performed in South Africa.