By Sasha Kadish
The divorce process in South Africa can be a complex and lengthy legal procedure. However, with the right guidance and expertise, it can be a much less daunting process and relatively simple. It’s important to note that the process may vary depending on individual circumstances and consulting with a divorce attorney is recommended for guidance and assistance.
Here is a general overview of the divorce process in South Africa and the main considerations to consider before proceeding with this journey:
- Jurisdiction: To file for divorce in South Africa, at least one of the parties must be a resident of South Africa or have lived in South Africa for at least one year before filing for divorce.
- Grounds for divorce: In South Africa, the only ground for divorce is the irretrievable breakdown of the marriage, which is a ‘no fault’ system of divorce. This means that a divorce will be granted if one of the parties believes that there are no reasonable prospects of restoring the marriage. A marriage can be dissolved even if one of the parties does not wish to get divorced.
- Summons: A divorce action is instituted by the issuing of a summons in either the Regional Court of the Magistrates’ Court having jurisdiction in your area, or in the High Court. The summons must be served personally on the defendant by the sheriff of the court. The summons specifies the number of days in which the defendant has to file a notice of intention to defend (i.e., contest the divorce), which is 10 days when the parties live within the jurisdiction of the court or 20 days if they live in different provinces. If the defendant does not answer by way of a notice of defence within the allotted time, the plaintiff may approach the court to grant an order of divorce on an unopposed basis. In such a case, only the plaintiff appears in court and the divorce is granted on the Plaintiff’s prayers in their summons. We always try and assist the parties to first try and settle the issues between themselves, if possible, so that the signed settlement agreement can be attached to the summons, making the divorce process much quicker, simpler, and more cost-effective. If an agreement is signed before the service of the summons, the Defendant can choose when and how they would like to be served per sheriff, making it a far less public process.
- Parental responsibilities and rights regarding minor children: When minor children are involved (below the age of 18), one must consider the guardianship, care, contact and maintenance of the minor child/children as well as with which parent the children will primarily reside. This will include a parenting plan or settlement agreement outlining the rights and responsibilities of each parent, as well as the amount of maintenance to be paid. The parenting plan or settlement agreement must be endorsed by the Office of the Family Advocate prior to the divorce being heard in court. The court will not conclude a divorce without this endorsement. If the parents cannot agree on the abovementioned parental responsibilities and rights, then the family advocate will conduct an investigation as to what exactly is in the best interests of the minor child/children and the judge or magistrate will hear argument from each party in this regard and make a final decision.
- Spousal maintenance: if one spouse has primarily maintained the lifestyle of the other throughout the marriage, there may be a claim for rehabilitative or lifelong spousal maintenance. Rehabilitative spousal maintenance is a monthly amount for a fixed period of time, or a once-off lump sum, which is aimed at helping the other spouse get back on their feet following the divorce. Lifelong spousal maintenance is the payment of maintenance to the former spouse until death or remarriage. This applies in circumstances where that spouse is incapable of supporting themself.
- Matrimonial property system: the division of assets and allocation of liabilities will be based on the matrimonial property system under which you are married, in other words, was an ANC signed and if so, was it with or without accrual? Without a signed settlement agreement, the court will order division as per the system under which you are married and it is then up to the parties as to how that division will be effected, failing which, a receiver and liquidator must be appointed to attend to the division of the joint estate or a referee to calculate the accrual in the marriage and payment thereof.
- Mediation: Parties are required to first attempt to mediate their disputes before a court will grant a final decree of divorce. This can be done through a trained mediator who will help the parties come to an agreement on issues such as custody, visitation, and division of assets. Mediation however is not always necessary as often we, as the appointed attorneys, can assist with helping the parties reach an agreement between themselves.
- The final decree of divorce: Once all issues have been resolved, the court will issue a final decree of divorce, officially ending the marriage. Once the order is granted, the parties then need to register the divorce at Home Affairs in order to change their marital status. Our firm can also assist with this process to avoid standing in line at Home Affairs!