Class notes
HOW TO GET DIVORCE IN SOUTH AFRICA
- Course
- LLB
- Institution
- University Of Zululand (UNIZULU)
THIS DOCUMENT PROVIDES A GUIDE FOR DIVORCE IN SOUTH AFRICAN LAW, ALL THE STEPS AND DUE PROCEDURES
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1Getting started
Before you get into preparing the summons and sending it off to start the process, let
us first address some preliminary questions:
How much does it cost to get a divorce?
In the case of an unopposed divorce (ie there is no dispute between yourself and
your spouse about the divorce or what should happen), your fees are likely to be
limited to the Sheriff’s fees and minor expenses for transport, photocopies, etc.
Sheriff’s fees can vary widely, depending on the distance he has to travel and how
many attempts he has to make at serving pleadings on the opposing party, but
generally these fees would be a few hundred rand. It is a good idea to contact the
Sheriff and ask him for an estimate before asking him to serve pleadings.
Where a divorce is opposed, the costs become unpredictable and entirely dependant
on the specifics of the case, but it can get very expensive very quickly.
What can I do if I need an attorney and I cannot afford one?
If you find that you do need legal assistance, but you cannot afford an attorney, you
might qualify for legal aid. You can approach Legal Aid South Africa, your local
University Law Clinic, or your nearest Law Society to enquire about your situation
and the availability and your eligibility for legal aid.
You can also approach the court and ask for an order compelling your spouse to
contribute to your legal costs. You do this by way of a so-called ‘rule 58’ application,
discussed in more detail here.
How long does it take to get divorced?
Where a divorce is unopposed and there are no complications or children involved, it
can sometimes be finalized in as little as four weeks.
Where a divorce is opposed, it can easily take two to three years or more. In most
cases, however, divorces get settled before the parties have to go to court – even
where the divorce started as an opposed divorce. As soon as the parties in an
opposed divorce reach a settlement agreement and the divorce becomes
unopposed, it can again be possible to finalize the divorce in as little as four weeks.
My spouse said that he/she won’t ‘give me a divorce’. What can I do?
Your spouse can oppose the divorce, but it is the Court that grants a divorce, not
your spouse. If you convince the court that the marital relationship has irretrievably
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broken down, the court can grant a decree of divorce even if your spouse does not
want to get divorced.
I know divorce can take a long time and in the meantime, we cannot agree on
arrangements around the kids. What can I do?
There is a process, called a ‘rule 58’ application, whereby you can ask the court to
give an order regarding the care of and access to the children and maintenance
pending the finalization of the divorce. You can even ask for a contribution to your
legal costs. For more information about this.
The family advocate will also get involved during the divorce process. This guide will
provide more information on this further on.
What if there is domestic abuse?
The courts can assist you in cases of domestic abuse, and the process is the same
whether you are busy with divorce proceedings or not. This, however, falls outside of
the scope of this guide.
What do I need to have to get a divorce?
Look at the list of documents required on the next page (“Courts”) and start collecting
these documents as soon as possible.
What if I am in a Civil Union?
The process stays the same as for a ‘normal’ civil marriage, and you can follow the
process described in this guide.
What if I am married in terms of traditional marriage?
This falls outside of the scope of this guide and is addressed elsewhere.
TIP: If you no longer have your marriage certificate, you can obtain a copy at your
nearest Home Affairs office for a small fee.
COURTS
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Before you approach the Court to start divorce proceedings, you will should get
certified copies of as many of the following documents as you can:
Your identity document
Your Ante-Nuptial Agreement, if any
The children’s births certificates, if any and
Your marriage certificate
Also make sure you have the following information handy:
Your full names, surname, identity number, occupation and place of residence
Your spouse’s full names, surname, identity number, occupation and place of
residence
Date when you got married and where the marriage took place
Childrens’ full names, surnames, identity numbers and
Comprehensive details of any funds (such as pension funds, retirement
annuities and provident funds) which you or your spouse belong to.
When you have all the information in order, then you can approach the court to start
the divorce proceedings. But which court should you approach?
You may institute divorce proceedings in either a High Court or Magistrates’ Court
(Regional Court), but where the parties are representing themselves in a simple
divorce, they should approach the Regional Court. This guide also focuses on the
process in the Regional Court, and not the High Court.
To determine which Court specifically you need to approach, you need to find the
court that has jurisdiction to hear this matter. A court has jurisdiction in a divorce
action if you, your spouse or both of you are:
domiciled in the area of jurisdiction of the Court on the date on which the
action is instituted (meaning the place you consider your permanent home is
located inside the area of jurisdiction of the Court) or
ordinarily resident in the area of jurisdiction of the court on the date the action
is instituted and has / have been ordinarily resident in South Africa for a
period of not less than one year immediately prior to that date
TIP: It is NOT recommended that you approach any High Court without a legal
representative.
To institute legal proceedings in the High Court is more expensive than instituting
legal proceedings in the Magistrates’ Court (Regional Court).
A Registrar is a person at the Court that assists with the administration such as the
issuing and filling of court documents.
You will also have complete a statistics form at the Court.
Personal information
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