How to get divorce
The divorce process in South Africa is relatively uncomplicated, yet the financial and emotional consequences can be overwhelming. Therefore, most divorces are normally lodged in the High Court. Hence, the High Courts in South Africa have overly burdened court rolls, and parties normally have to wait a long time for their divorce matter to go to trial when their divorce is contested.
There are three types of divorces
- Uncontested Divorce
- Contested Divorce
- Divorce by default
The best way to get divorced is an uncontested divorce. Therefore to settle the matter in an amicable way. Hence, this type of divorce is the best and most cost effective for all parties concerned. Filing for an uncontested divorce can be finalized in as little as 6 weeks.
The divorce process
A divorce action is instituted by the issuing of a summons at the court. You can divorce in either the Regional Court having jurisdiction in your area or in the High Court. To start the divorce process you need to serve a Summons. A divorce summons is unique in that it must be served personally on the defendant by the sheriff of the court.
A court has jurisdiction in a divorce action if one or both parties are:
- domiciled in the area of jurisdiction of the court on the date on which the action is instituted; or
- ordinarily resident in the area of jurisdiction of the court on the said date and has/have been ordinarily resident in South Africa for a period of not less than one year immediately prior to that date.
The best decision you can make is to do your divorce in an uncontested manner. An uncontested divorce is one in which you and your spouse agree on the terms of your divorce. You will both consult with the same attorney, who will be unbiased and impartial. There is no formal trial, and only the plaintiff appears in court.
In an uncontested divorce, the parties agree prior to the divorce on how to divide their assets and, if there are children involved, which parent will become the parent of primary residence and which will be the parent of alternate residence. A settlement agreement is then drafted with the help of the attorney, entered into (signed) by both parties, and made an order of the court. Therefore, an uncontested divorce is without a doubt the least expensive type of divorce.
A default divorce is a method of uncontested divorce. Therefore, a court will grant a divorce by default if you serve a divorce summons on your spouse and he/she does not respond. Hence, a default divorce, the plaintiff prepares a summons setting out his/her claims with or without the help of an attorney.
A court issues the summons and a sheriff serves the summons on the defendant in person. 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 (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 defense within the allotted time. Therefore, the plaintiff may approach the court to enroll the divorce on the court roll and conclude the divorce on the defendant’s default. In such a case, only the plaintiff appears in court.
Do-it-yourself divorces or Self Help Divorce
DIY divorces are concluded without the help of an attorney. Therefore a far cheaper option. Divorcing without an attorney can be accomplished in two ways:
- Your local magistrate’s court can provide you with the necessary forms and give you guidance on how to conclude your own divorce without legal representation.
- If you don’t want to wait in a queue, you can use an on-line divorce service such as self-help-divorce.co.za to draft your divorce papers for you. All you will need to do is fill out a questionnaire and pay the fee.