You may file for divorce in either the Regional Court or the High Court, depending on where you live. A summons is the first step in initiating the divorce process.
The process of getting divorced begins with serving a Summons. A divorce summons is unique in that it must be delivered to the defendant personally by the sheriff of the court. In South Africa, the marital regime of the parties determines how the assets will be divided upon divorce.
You do have rights as a divorcing spouse, and you deserve to have your interests represented in court.
What Is Divorce?
Divorce is known as the termination of marriage and its obligations/ responsibilities. A divorce proceeding outlines the division of assets as well as other factors such as who will be the primary care giver of the child (should the couple share responsibility over a child), the layout of visitation rights and allocation of maintenance.
Once you’ve determined that you want a divorce, you may obtain one on the grounds of irretrievable breakdown of the marital relationship. The court will assess whether the marriage is irretrievably broken down based on the evidence provided at the hearing.
Uncontested Divorce
An uncontested divorce is one in which you and your spouse work together to establish the terms of your divorce. You and your spouse will both consult with the same attorney, who will be independent and impartial.
Uncontested divorces are a lot easier on everyone involved as there are usually no hard feelings or dramatic fights. What’s more, they’re generally much less expensive than contested divorces. An uncontested divorce is the easiest way to divorce and the best option if you have a neutral relationship with your spouse. Once you both agree on the terms of the divorce and sign the papers, the court will finalize the divorce, and you will each be granted full legal rights to your marital assets and responsibility over your children.
Default Divorce
If your spouse does not respond to a divorce summons, a court will grant a default divorce. The plaintiff prepares a summons, whether with or without the help of an attorney, setting out his claims in a default divorce.
If the defendant fails to respond in time with a notice of defence, the plaintiff may ask the court to enter the divorce on the court docket and finalize the divorce on the defendant’s default. In such a scenario, the plaintiff appears in court alone.
Contested Divorce
In the event that the spouses are unable or unwilling to reach an agreement, the divorce will proceed on a contested basis. Unlike an uncontested divorce, in this case both parties will need their own attorney.
This type of divorce is more complex and costly than an uncontested divorce. Furthermore, the length of time it takes to finalize a contested divorce can be quite lengthy. The process followed in a contested divorce has various stages and can take anywhere from 2-4 years to reach completion.
Contested Divorce Process
A contested divorce proceeding consists of various stages. Below is a brief outline of the process followed:
- Pleadings:
- Issuing of summons
- Defendant plea
- Defendant counterclaim
- Plaintiff plea to counterclaim
- Discovery of documents
- Pre-trial conference
- Trial date application
- Trial
- Judgement
Grounds For Divorce In South Africa
Irreconcilable differences are generally not considered grounds for a divorce, but rather a reason for the court to grant a divorce. The court must be convinced that the differences between the spouses are so severe that there is no chance of reconciliation.
Some of these grounds are irreconcilable differences, a spouse’s abandonment of the family for a period of at least one year, a spouse’s conviction and imprisonment if they are a habitual criminal, or incurable mental illness. Irreconcilable differences are one of the most common reasons for seeking a divorce. It may be that you and your spouse can no longer coexist because of your irreconcilable differences. Other grounds may include adultery, mental illness and abuse.