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How to handle the divorce process in South Africa

You never thought you’d see yourself getting divorced, but now you’re facing a host of new challenges, and some serious heartache on top of it all.

Since this is all new to you, we’ve put this information together to help you understand what the steps of a divorce are in South Africa. Now you can get through this difficult situation a little bit easier.

Remember that divorce processes differ according to culture and religion
If you’re in a civil marriage under the Marriage Act 25 of 1961, you’ll follow the process of the Divorce Act 70 of 1976.

If you’re married in terms of the African Customary Law, you’ll follow similar divorce processes to civil marriages, but circumstances can differ depending on your customs and traditions.

Muslim and Hindu couples will follow the rules of their religion to settle a divorce and don’t follow the process of a civil marriage divorce.

Two types of divorces

Circumstances and emotions have a big influence on the way your divorce will get settled. It’s important that you understand the difference between an uncontested and contested divorce.

An uncontested divorce
An uncontested divorce is the easier way to go and often works out a lot cheaper. This is when you and your spouse can come to an agreement on things like:

Who gets custody.

Access and visitation to children.

Maintenance agreement.

Dividing of all assets and liabilities.

Normally during an uncontested divorce procedure, both spouses use the same attorney to settle arrangements and no trial is necessary.

But it’s not to say that an attorney is even necessary – it’s possible to get divorced using guidance from the local magistrate’s court alone. However if children, pension funds or assets are involved it’s advisable that a legal representative is involved.
A contested divorce
You’ll follow a contested divorce procedure when one of you doesn’t want to get divorced, or when the two of you can’t settle on an agreement without legal help.

This divorce procedure often takes up to a few years; so on-going legal costs can get very expensive. Here are a few points that will help you understand the process of a contested divorce:

The first step is to issue a divorce summons to your magistrates or local district family court. (You’ll issue a summons for an uncontested divorce too – it’s the basic first step to any divorce.)

Next you’ll gather divorce papers that make up your pleadings. This includes your summons, details on your marriage, reasons for divorced and explanations on redistribution of assets, child custody and maintenance terms. The plea also includes counterclaims, which is your spouse’s response on your initial plea.

After pleadings have been settled you’ll apply for and set down a trial date at the High Court. You could wait quite some time to get a trial date.

While waiting for your trial date, both you and your spouse have the opportunity to gather supporting documents on all pleas and claims. Any documents you gather must be shared with your spouse before the trial date otherwise it cannot be used as evidence on your part.

On the day of your trial, you, your spouse and all legal representatives will inform the court on issues that are in agreement and issues that are still in dispute.

The court will make a final judgement on how the divorce gets settled, based on circumstances, arguments and documents provided.

You don’t need to go through this divorce alone. Having your friends and family support you through everything will help relieve some of the heavy emotions you’re feeling. Keep your chin up, push through this difficult time and remain strategic – even if things get messy.