The divorce process in South Africa can either be a quick and relatively straightforward procedure or a very long-winded one. Get to grips with the basics of South African divorce law, including how DIY and contested divorces differ and how mediation works.
Whether you’re hoping to get a speedy DIY (do it yourself) divorce or are dealing with a contested divorce requiring mediation or court hearings, get the basics of how the process works here.
The divorce rate in South Africa
Between 2012 and 2016, the divorce rate in South Africa increased by 5%, while marriage rates dropped. This is said to be because of an increase in couples choosing to live together but stopping short of getting married.
How to get a divorce in South Africa
Marriages in South Africa must be dissolved by a court – and you’ll need to prove that you and your spouse can no longer live together and won’t be able to resolve your differences.
Legally acceptable reasons for ending your marriage are as follows:
- You haven’t lived together for a long time/one partner has left the other
- The couple no longer love each other
- One partner has been institutionalised for mental illness for at least two years without sign of recovery
What you’ll need to get a divorce in South Africa
Before being granted a divorce, you’ll need to show that you’ve found a solution to the following issues:
- Who gets custody of the children / how access arrangements work – Access arrangements need to be agreed before the divorce can go ahead. The court can restrict access to either party if it believes seeing a parent isn’t in the best interests of the child.
- How any maintenance payments will be made – The court will issue an order confirming who pays what. If the two parties can’t agree on payments, then the court will rule on their behalf.
- How property and other assets will be divided – Generally, assets and debts are shared when you get divorced, unless a premarital contract was agreed. This isn’t always the case, however, as rules have changed over time and the legal situation when you got married will govern how your assets are divided.
Once you’ve provided your divorce summons, your spouse will have 10 days (or 20 if they live in a different province) to respond. When applying for a divorce, you’ll need:
- Details of your marriage, including the date you got married and the location
- Your names and address details
- Details of any children
- Grounds for divorce
An uncontested divorce in South Africa
The process can go ahead quickly if both parties agree to a divorce and have reached a settlement on childcare and financial issues.
Uncontested divorces are the quickest and cheapest option, and usually involve both parties working with the same attorney to put together an agreement, which can then be provided to the court.
In simple cases, it can be possible to get divorced without an attorney being involved. In what’s informally known as a DIY divorce, you can get the required forms from your local magistrate’s court or use an online divorce service.
This process is best saved for simple and uncontested cases, such as when a couple have only been married a short time, or where there are no disputes or any substantial assets that need dividing. This kind of divorce could be finalised in just four to six weeks.
Default divorces in South Africa
If one partner serves a summons to the other and they don’t respond, this is known as a default divorce.
While default divorces do go ahead, it can be better to ask your spouse why they haven’t responded, as they could seek to delay the process later on if they claim the documents weren’t delivered properly or have a justifiable excuse for their lack of response.
Divorce hearings in South Africa
You’ll need to attend a hearing before your divorce is finalised. At this hearing, you’ll be asked questions to confirm the details you’ve provided in your application. Using a family court rather than a high court could result in your application going through more quickly and cheaply.
If you and your spouse can’t agree on divorce terms, or one party decides to dispute the reason for the divorce, a contested divorce is the next step – although this can be a far more long-winded process.
Contested divorces involve going to court and passing through various stages, as follows:
- Pleadings – Establishes the facts surrounding the summons of the divorce and the defence, and allows the defendant to make a plea and any counterclaims
- Application for and set down of trial date – The person bringing the divorce applies for a trial date, which is then allocated by the court
- Discovery of documents – The evidence documents that will be used must be formally raised, and the other party must be allowed to read them before the trial
- Further discovery/particulars – If one of the parties believe more relevant documents need to be disclosed by the other party, they can request them
- Pre-trial conference – If requested by the court or either party, a conference to consider a settlement can take place before the trial begins.
It’s possible to go through mediation to help you reach a settlement with your spouse.
A mediator will assist you in dividing your assets and in finding an agreement over child custody and maintenance and can write your settlement agreement, which must be presented to the court when applying for the divorce.