How does one get divorced in South Africa? Adv. Muhammad Abduroaf unpacks the legal process in a simplified manner.
Written by Adv. Muhammad Abduroaf – LL.B LL.M Advocate of the High Court of South Africa
Legal Advice on Getting Divorced
If you want to get divorced from your spouse, I strongly advise that you approach a legal practitioner or an attorney to attend to it on your behalf. This I would implore even more under the following circumstances:
– There will be a dispute over care and visitation rights over the child/children;
– One of the parties will be applying for forfeiture of patrimonial benefits from a marriage in community of property;
– The joint estate is huge or complicated; or
– The other party will be making use of legal representation.
If, however, you would like to know the general procedures on how to go about obtaining a divorce decree, they are listed summarily below. Many rules regulate divorce processes, and the summary below does exclude some of them. These include exceptions, strikeouts, compelling compliance, service addresses, etc. Other matters incidental to divorce proceedings, e.g. interim arrangements pending the divorce regarding maintenance for you or your children and care and contact regarding children, are not dealt with. Therefore, please consult a legal practitioner or the divorce court throughout your divorce process, should you decide to do the divorce yourself.
Summons and Particulars of Claim
A summons needs to be drafted, which should be issued by the divorce court to commence the divorce process. It should have on it the details of the court you will be issuing the divorce from, details of the parties, e.g. names, occupation, and address, etc. Every High Court in the area where you live has the authority to grant a divorce. You may also approach the Magistrate’s Court. Each court has its own rules and procedures.
You should then draft a document called “particulars of claim” outlining relevant matters concerning the marriage, children, reasons for wanting a divorce, and what you want the court to grant you in a divorce order. These particulars of the claim you attach to the summons.
Once you have your summons and particulars of claim in order, you have to have the summons issued.
To do this, make three (3) copies of your set of documents (summons and particulars of Claim) and have it issued at court. Other documents may have to be attached as well.
Issuing and Service of the Divorce Summons
Once you are at the court, go to the clerk/registrar of the court and have your documents issued.
The clerk/registrar will sign the summons and provide a case number, and write it on the summons. If the High Court is online, the online system would provide a case number after uploading the documents.
You should then take the original and a copy (both must be signed and stamped by the clerk/registrar of the court) and submit them to the sheriff who serves documents, where your spouse works or lives. You can ask the clerk/registrar of the court for those details.
The extra copy of the summons and particulars of claim you keep for your file and records.
Notice of intention to defend the divorce
Once the sheriff serves the documents, your spouse has two weeks to inform you whether he or she will be defending the divorce. This information is outlined in the summons.
If your spouse decided not to defend the divorce action, then after two weeks have elapsed, you may set the matter down as an undefended divorce. If your spouse intends to defend the divorce, they will then have to follow the steps outlined next.
Plea to particulars of claim in divorces
Once you receive notice of your spouse’s intention to defend the divorce, about a month later, your spouse or his or her attorney should serve and file a plea.
The plea should outline which parts of your particulars of claim your spouse agrees with (or disagrees with), which would give everyone an indication of what to prove at court.
Counter Claim in Divorce Actions
Your spouse might want to file a counterclaim. In the same way, as you outlined your case as to what you want from the court and the reasons therefore in your particulars of claim, your spouse can file a counter-claim against you as well.
A counter-claim might still be filed if your spouse agrees to a divorce, but maybe wants primary care of the children, whereas in your particulars of claim, you asked for primary care.
You should then, within 10 (ten) days, plead to the counter-claim in the same manner in which your spouse pleaded to your particulars of claim.
Discovery in divorce cases
While you are waiting for a trial date, and well before the trial, you may be asked, or may ask, to provide a schedule of books and documents in your possession and under your control relating to the divorce, under oath. This could be policy documents, deeds, etc, and which you or your spouse might want to make use of at trial.
Once you receive these schedules, you may inspect and request copies of the documents.
Obtaining a trial date for the divorce
Once you have received the plea, without a counter-claim, or have pleaded to your spouse’s counter-claim, you should then approach the clerk/registrar of the court for a trial date. This you or your spouse may do.
Please note that certain courts may have other procedures that need to first be adhered to before obtaining a trial date. For example, pre-trial conferences before a judicial officer, etc.
Divorce day / Trial date (Finalising the Divorce)
If your spouse does not defend the divorce within the period mentioned above, go back to court and ask for an unopposed divorce date and attend to your divorce on that date.
If, however, your divorce is defended, a trial should ensue. During the trial, each party will prove its case. Witnesses will be called, and at the end, the Magistrate or Judge will deliver the judgment.
Best of luck, and please, don’t take my word; contact a legal practitioner should you decide to get divorced.
