Introduction to Divorce and Legal Principles

Divorce is the legal process of dissolving a marriage, whether under civil or customary law. It is governed by specific legal principles, requiring the party initiating the divorce (the Plaintiff) to demonstrate that the marriage has irretrievably broken down. This could be due to reasons such as infidelity, prolonged separation, or abuse. The divorce process can be straightforward if both parties agree on key issues like asset division, child access (custody), and maintenance, but it can also become complex and costly if contested.

This guide explains the divorce process, highlighting key legal principles, procedural steps, and ways to minimize conflict and costs.

How Divorce Works

Filing for Divorce

Once a couple decides to divorce, the Plaintiff must prepare a divorce summons. This document is filed in either the High Court or the Family Court at a local Magistrates’ Court. The summons must state the grounds for divorce, which typically include:

• Irretrievable breakdown of the marriage (e.g., loss of love, infidelity, separation, or abuse).
• Permanent mental illness or coma of one spouse.

The Divorce Summons

The summons is a critical document as it outlines the terms of the divorce, including:

• Division of assets – How property, savings, and debts will be split.
• Child access (custody) and residency – Determining where the children will live.
• Maintenance – Financial support for children and/or the spouse.
• Visitation rights – The non-custodial parent’s rights to see their children.
• Parental responsibilities and rights – Ensuring both parents remain involved in decision-making.

A written settlement agreement between both parties can simplify the process and reduce costs by making the divorce unopposed.

The Divorce Process

Serving the Summons

The Plaintiff must serve the summons on the Defendant through the Sheriff of the Court. The Defendant can:

1. Accept the terms and not oppose the divorce – This leads to a quicker and cheaper resolution.
2. Oppose the divorce – This requires a response through a formal Plea, which could lead to lengthy and costly legal proceedings.

Unopposed vs. Opposed Divorce

• Unopposed Divorce: If the Defendant does not contest the divorce, the Plaintiff can apply for a court date. The matter is then finalized with minimal delay and cost.
• Opposed Divorce: If the Defendant challenges the divorce terms, both parties’ attorneys will exchange legal documents (pleadings). The case may take years to resolve and result in high legal fees.

Tip: If possible, try to reach an amicable settlement through mediation, a religious leader, or a trusted friend to avoid unnecessary legal expenses.

Using a Lawyer

Legal Costs and Support

One of the biggest concerns when hiring a lawyer is the cost. However, some law firms offer upfront agreed fees, rather than billing per hour or per consultation. A good lawyer will:

• Guide you through the process step by step.
• Assist in negotiating a fair division of assets and child custody arrangements.
• Minimize costs and emotional distress.
• Offer flexible payment plans if finances are tight.

Conclusion

Divorce can be a stressful and costly process but understanding the legal principles and procedures can help simplify it. If both parties cooperate and settle key issues early, the process can be relatively smooth and affordable. Seeking professional legal advice can further ensure that your rights are protected, and the divorce is handled efficiently.

Need guidance on your divorce? We offer clear, affordable legal assistance to help you through the process with minimal stress. Contact us today at sasha@bmalaw.co.za for an initial consultation and let’s find the best path forward for you.