The divorce process in South Africa can be a complex and lengthy legal procedure, but it can become more manageable and straightforward with the right guidance and expertise. It’s important to remember that individual circumstances may influence the process, so seeking advice from a divorce attorney is highly recommended. But here is an overview of how to file for divorce in South Africa:
Jurisdiction and ground for divorce
To initiate a divorce in South Africa, at least one of the parties must be a resident of the country or have lived there for a minimum of one year before filing for divorce. The sole accepted ground for divorce is the irretrievable breakdown of the marriage, operating under a ‘no fault’ system. This means that a divorce can be granted if one party believes there is no possibility of saving the marriage, even if the other party does not wish to get divorced.
Divorce summons
The divorce action begins with the issuance of a summons either in the Regional Court or the Magistrates’ Court with jurisdiction in the area, or in the High Court. The defendant must be personally served with the summons by the court’s sheriff. The defendant then has a specified number of days to file a notice of intention to defend (i.e., contest the divorce).
If the defendant fails to respond within the given time, the plaintiff can approach the court for an unopposed divorce. In this case, only the plaintiff needs to appear in court, and the divorce is granted based on the prayers in their summons. To expedite and simplify the process, it is advisable to attempt to settle issues between the parties beforehand, as a signed settlement agreement can be attached to the summons.
Divorce process with young children
In cases involving minor children (below 18 years old), matters related to guardianship, care, contact, and maintenance of the children must be addressed. This requires a parenting plan or settlement agreement outlining the rights and responsibilities of each parent, along with the amount of maintenance to be paid. See this article on child maintenance. The parenting plan or agreement must be endorsed by the Family Advocate before the divorce can proceed in court. If disagreements arise, the Family Advocate will investigate, and the court will make a final decision in the best interests of the children.
Spousal maintenance
When one spouse has financially supported the other during the marriage, there may be a claim for rehabilitative or lifelong spousal maintenance. Rehabilitative spousal maintenance involves monthly support for a fixed period or a one-time lump sum to help the other spouse adjust to post-divorce life. Lifelong spousal maintenance, on the other hand, continues until the recipient remarries or passes away, applicable when the spouse is unable to support themselves.
Matrimonial property system
The division of assets and liabilities will be based on the matrimonial property system under which the parties were married, specifically whether there was an Antenuptial Contract (ANC) and whether it was with or without accrual. If there is no signed settlement agreement, the court will order the division based on the system under which the parties were married. The parties can then decide on the specific division, or if they cannot agree, a receiver, liquidator, or referee may be appointed to handle the process.
Mediation before final decree of divorce
South African law requires parties to attempt mediation before the court grants a final decree of divorce. Mediation involves a trained mediator helping the parties reach agreements on issues such as custody, visitation, and asset division. However, in some cases, the appointed attorneys can facilitate agreements, making mediation unnecessary.
The final decree of divorce
Once all issues are resolved, the court issues a final decree of divorce, officially terminating the marriage. Afterward, the parties must register the divorce at Home Affairs to change their marital status. Professional assistance from a law firm can be beneficial to navigate this process efficiently and avoid long waits at Home Affairs.
SVN Attorneys Divorce Services
SVN offers a range of services to protect, maintain and ensure a healthy family life even in the unfortunate event that your marriage needs to be dissolved through divorce.
Contact us for a consultation to discuss your options and the next steps in filing for a divorce.
