How to divorce in South Africa

Divorce is the legal process that dissolves a marriage by a court of law. It applies to any civil marriage, customary marriage, civil union, or marriage concluded in terms of religious rights. 

Initially, only the High Courts in South Africa could attend to divorce proceedings. Eventually, the High Courts became overburdened, resulting in a backlog where parties had to wait months before their divorce matter could be heard. 

To address the problem, the Regional Courts Amendment Act came into effect in 2010, which amended the Magistrate Court Act to allow the regional divisions of the Magistrate Courts to deal with divorce cases.Divorces may now be instituted in the High Courts or the Regional Courts. 

Before we start discussing the process involved, let's first address some preliminary frequently asked questions:

How much does a divorce cost?

The cost of a divorce will depend on various factors, but an uncontested divorce, where there's no dispute between the parties about the divorce or what should happen, can be done by yourself for a few hundred Rand. 

Your primary expense is likely to be the Sheriff's fees, which will depend on the distance traveled and the number of attempts made to serve the pleadings on the opposing party. We suggest you contact the Sheriff beforehand and request an estimate before instructing him to serve the Summons.

The moment minor children are involved, the matter becomes significantly more complicated concerning rights of access and maintenance. Even more so, where divorce is opposed, it can quickly become costly, costing several tenths of thousands of Rand.

I need an divorce attorney but cannot afford one.

Sometimes attorneys are prepared to assist a client on a contingency fee basis. Based on the agreement, the firm will proceed to help the client and recover their fees at a much higher tariff once the division of assets occurs.

You might also qualify for legal aid. You can approach Legal Aid South Africa, any local University Law Clinic, or your nearest Law Society to see if your situation entitles you to the availability and eligibility for legal aid.

Lastly, you may also approach the regional Court through a Rule 58 application (same as Rule 43 in the High Court) to request an order compelling your spouse to contribute to your legal costs. 

However, do note that you will remain liable for your attorney's fees for assisting you, and we suggest you read our article on legal fees for a more comprehensive explanation.

How long will it take to get divorced?

An unopposed divorce with no minor children involved and no complications can be finalised in as little as six weeks. Where a divorce is opposed, the case can easily take two to three years and, in some cases, even longer. 

However, in most cases, the divorce will get settled before the parties have to go to Court through settlement negotiations. When the parties reach a settlement agreement, an opposed divorce becomes unopposed, and it can be finalised in as little as four weeks, depending on the availability of a court date.

My spouse said that he wouldn't 'give me a divorce. What can I do?

Your spouse can only oppose a divorce, not refuse it. Therefore, you only have to convince the Court that the marital relationship has broken down irretrievably for the Court to grant your decree of divorce, even if your spouse does not want to divorce.

If the divorce is opposed, it will take some time to finalise, and you might have to approach the regional Court by way of a Rule 58 application (same as a Rule 43 in the High Court) to request an order regarding the care and maintenance of the children, and access pending the finalisation of the divorce. We will discuss this later in more detail.

What is the process of getting divorced?

Identify the correct Court to use

The first step is to identify the correct Court for issuing the Summons. You may initiate divorce proceedings in either a High Court or Regional Court (Magistrates' Court). Where the parties represent themselves in a simple divorce, the Regional Court would be the preferred choice. 

In this article, our focus will be on the process in the Regional Court, not the High Court. Instituting divorce proceedings in the High Court is not only more expensive than the Regional Court but also more complicated. Therefore, we strongly recommend that you not approach the High Court without legal representation.

To determine which Court you need to approach, you'll have to decide which courts have jurisdiction to hear this matter. A court will have jurisdiction over divorce proceedings if you, your spouse, or both of you are:

• Domiciled in the Court's jurisdiction on the date the action is instituted (meaning your permanent home is located inside the jurisdiction of the Court) or
• Ordinarily resident in the jurisdiction of the Court on the date the action is instituted and has resident ordinarily in South Africa for a period of not less than one year immediately before that date

If you're unsure if your permanent home falls within a Court's area of jurisdiction, phone the Registrar of that Court to find out. We have also prepared a list of Regional Courts and the relevant regions under their jurisdiction.

Information required to issue Summons

Certified copies of the following documents will be required before you approach the Court to start divorce proceedings:

• Your Identity Document;
• Your Antenuptial Contract, if any;
• Your children's certificates of birth, if any; and
• Your marriage certificate.

In addition, make sure you have the following information:

• Your full name, surname, identity number, occupation, and place of residence
• Your spouse's full name, surname, identity number, occupation, and place of residence
• Date when you got married, and location where the marriage took place
• Children's full names, surnames, identity numbers and
• Comprehensive details of any funds (such as pension funds, retirement annuities, and provident funds) to which you or your spouse belong.

Once you have all the information, you can approach the Court to start the divorce proceedings. Although all the forms will be available at Court for you to complete, we have prepared a booklet which you may request by email.

Particulars of the Parties

You must complete the "Combined Summons" to initiate a divorce action, which consists of a summons and Particulars of Claim. Therefore, your first step will be to complete the Summons, as its clauses must contain specific details to be effective and prevent any objection to your divorce summons.

In the divorce summons, you have to describe the parties involved in the divorce proceedings by listing yourself (the "Plaintiff") and your spouse (the "Defendant"). The particulars must be the same as detailed on your respective Identity Documents. Therefore, the first clause in the divorce summons will contain your particulars, and the second clause will have the specifics of the Defendant. 

Your Particulars of Claim must also include these particulars and information in a specific format. You always refer to yourself in the third person as "the Plaintiff" in the indicated form. Similarly, you refer to your spouse as "the Defendant" and give their particulars.

Court's Jurisdiction

Once you've completed the clauses relating to the particulars of the Plaintiff and the Defendant, you must complete the third clause on the Court's jurisdiction (or 'authority' to hear this specific matter). The clause about jurisdiction will look similar to this:

"The above-mentioned Honourable Court has jurisdiction in this matter as the Plaintiff is domiciled within and ordinarily is resident in the jurisdiction area of the court and has been ordinarily resident in the Republic of South Africa for more than 12 months prior to the institution of these proceedings, as required by section 2(1) of the Divorce Act, act 70 of 1979."

It is essential to ensure that the Court you want to approach is correct. If you're uncertain, we suggest you approach your nearest Court and make sure that you start your divorce proceedings in the right Court.

Marital Regime

The next clause will deal with your marital regime, under which matrimonial property system you were married, and where and when it was concluded. Do Note: Different considerations might apply to your case if you got married outside of the Republic of South Africa, in which case we suggest you seek legal guidance from an attorney.

We will briefly discuss the different matrimonial property systems. You may want to read our article on Antenuptial Contracts for a more comprehensive discussion. First, a distinction must be drawn between a marriage "in community" as opposed to "out of community" of property. If you did not conclude an Antenuptial Contract before your wedding, you are, by default, considered to be married in community of property.

In a marriage "in community of property," you and your spouse's two individual estates would have merged to form one jointly owned estate that contains both parties' assets. The result is that the joint estate's assets are co-owned and will be divided equally between the two of you when you divorce.

However, some assets might fall outside the joint estate and belong exclusively to you or your spouse (for example, specific inheritances, gifts, or money that a court awarded you). If unsure, you should consult an attorney to establish if you have assets that fall outside the joint estate.

In a marriage "out of community" of property, excluding the accrual system, you and your spouse's estate and assets remained separate. If you opted to get married "out of community of property with accrual," we will still be dealing with two individual estates. However, despite each spouse owning their assets, the growth accrued during the marriage will be equally divided when they get divorced. Their Antenuptial Contract will determine how to deal with the assets.

Usually, the spouse whose estate grew the most will have to transfer funds, assets, or some other value to the spouse whose estate grew less. If you got married before 1 November 1984, out of community of property without the accrual system, you are entitled to request redistribution of assets. We would strongly advise you to seek assistance from an attorney if you fall within this category. 

You will be required to produce your original marriage certificate to the court on the day of the hearing. You may attach the original marriage certificate to the summons, but you will run the risk of the certificate getting lost during the proceedings.

Reasons for Divorce

In the following clause, you have to furnish your reason for seeking a divorce. In South Africa, a 'no fault' system is followed; therefore, you don't have to prove any fault on either party's side; you only have to convince the Court that the marriage had broken down irretrievably. There exist three grounds on which the Court may grant a divorce:

• The Defendant's continuous unconsciousness;
• The Defendant's mental illness; or
• The irretrievable breakdown of the marriage.

Continuous unconsciousness

For the Court to grant a divorce based on continuous unconsciousness, you must prove to the Court that:

• Immediately before the institution of the divorce action, the Defendant has been unconscious for a continuous period of at least six months, 
• Two medical practitioners, of whom one must be a neurologist or a neurosurgeon appointed by the Court, have to present the Court with evidence  in regards to the reasonable prospect of the Defendant regaining consciousness

Mental illness

In order for a Court to grant a divorce based on mental illness, you have to prove to the Court that:

• The Defendant is being detained at an institution as a State Patient, or a mentally ill convicted prisoner or has been admitted as a mental patient at an institution.
• The Defendant has not been discharged unconditionally as such a patient or mentally ill prisoner for a uninterrupted period of at least two years immediately before the institution of the divorce action.
• The Court must hear the evidence of two psychiatrists, one of whom must have been appointed by the Court, regarding the following: 
  • the mental illness of the Defendant;
  • Whether the Defendant is mentally ill; and
  • Whether there is a reasonable prospect of curing the mental illness.

_{Copyright © 2023 Rohan Lamprecht. Disclaimer: The information in this article is of a general nature for educational purposes only, relevant to the publishing date. Any opinions expressed are solely those of the author and do not necessarily reflect the views or opinions of Grobler Malope Inc. The content is not intended to constitute professional or legal advice, and you are encouraged to call and consult with our attorneys to discuss your specific situation before making any decisions. Grobler Malope Inc - 087 057 1790 - info@gmilaw.co.za}