We’ve put together a short and clear roadmap with all the steps that you can expect in the divorce process in South Africa:
Consult with an attorney:
It is important to seek legal advice from an attorney who specializes in family law as early as possible in the divorce process. They can provide you with guidance on the legal process, help you understand your rights and obligations, and assist you with preparing the necessary documents.
Determine grounds for divorce:
South Africa recognizes only two grounds for divorce, namely irretrievable breakdown of the marriage or the fact that the parties have been living apart for a continuous period of at least two years. It is important to establish which ground applies to your situation and to ensure that you can provide evidence to support your claim.
Determine the type of divorce:
There are several types of divorce in South Africa, including uncontested, contested, and default. An uncontested divorce is the most straightforward and quickest type of divorce, where the parties are in agreement on all aspects of the divorce. A contested divorce is more complex and involves disputes on issues such as maintenance, custody, and division of assets. Default divorce can occur if one party fails to respond to the summons or fails to attend court proceedings.
File a summons:
To initiate a divorce, a summons must be filed with the appropriate court. The summons sets out the details of the case, including the grounds for the divorce, the relief being sought, and the names and addresses of the parties.
Serve the summons:
Once the summons has been filed, it must be served on the other party, either by a sheriff or by a process server. Service must be done in accordance with the rules of the court.
Respond to the summons:
If you are the respondent in the divorce, you will need to respond to the summons within a specified period of time (usually 10 business days). This involves filing a notice of intention to defend or a plea, setting out your response to the claims made in the summons.
Negotiate a settlement:
If both parties are willing to negotiate, they may be able to reach a settlement on the issues of custody, maintenance, and division of assets without going to court. Negotiations may take place directly between the parties, through attorneys, or with the assistance of a mediator.
If the parties are unable to reach a settlement, the court may order mediation to attempt to resolve the issues. Mediation is a process where a neutral third party assists the parties in reaching an agreement on the issues in dispute.
If mediation is unsuccessful, the case will proceed to court, where a judge will make a decision on the issues of custody, maintenance, and division of assets. The court process can be lengthy and complex, and it is important to have legal representation throughout.
- Pre-trial conference: Before the trial, the court may order a pre-trial conference where the parties and their attorneys will meet with the judge to discuss the issues in dispute and the procedures for the trial.
- Discovery: Both parties are required to disclose all relevant information and documents that are necessary for the trial. This is known as the discovery process.
- Witnesses: Both parties may call witnesses to testify on their behalf. Witnesses may include family members, friends, and experts.
- Evidence: The parties may present evidence to support their case, including documents, photographs, and other physical evidence.
- Closing arguments: At the conclusion of the trial, each party will make closing arguments summarizing their case and requesting relief from the court.
- Judgment: The court will then issue a judgment, which will set out the court’s decision on the issues in dispute, including custody, maintenance, and division of assets.
- Appeals: If either party is dissatisfied with the judgment, they may appeal the decision to a higher court.
Finalize the divorce:
Once the court has made a decision, the divorce can be finalized. This typically involves obtaining a divorce decree, which is a legal document that officially dissolves the marriage. The decree must be filed with the court and registered with the Department of Home Affairs.
It is important to note that the divorce process can be emotionally and financially challenging, and it is recommended to seek the assistance of an experienced divorce attorney to ensure that your rights are protected throughout the proceedings. Additionally, the length of time that the divorce process takes will depend on a variety of factors, including the complexity of the case, the cooperation of the parties, and the workload of the court.