No sane person goes into a marriage to get a divorce.
On a lighter note – some say no sane person gets married in the first place.
Whatever your feelings on marriage – we cannot deny that no one is thrilled when divorce hits.
More often than not, divorce hits hard – mentally, physically, emotionally and financially.
Van Heerden’s Attorneys answered some important and frequently asked questions about legally divorcing your spouse:
1. How long does a divorce take in South Africa?
It depends on whether or not the divorce is defended and if the divorce can be settled between the parties.
Generally, there are two types of divorce in South Africa: uncontested and contested.
– An uncontested divorce is the quickest and most cost-effective way to get divorced. An uncontested divorce occurs if your spouse fails to defend a divorce summons or when the divorce is settled relatively quickly after it commences. An uncontested divorce is by far the best and most cost-effective way to get divorced for all parties concerned. An uncontested divorce can be finalised within 2 to 6 weeks, depending on the parties’ cooperation and willingness to settle.
– A divorce is contested when the parties cannot reach an agreement regarding certain aspects of their divorce, such as the division of assets, child custody and contact, child maintenance, spousal maintenance, etc. A contested divorce can take anywhere from a few months to a few years to finalise, depending on the conduct of the parties and how intent the parties are on finalising their divorce.
2. What is the fastest way to get a divorce?
An uncontested divorce is the quickest and most cost-effective way to get divorced in South Africa.
In an uncontested divorce, either one spouse will simply not defend the divorce summons, or the parties will work together with one attorney to come to a fair settlement, after which a settlement agreement is drafted by the attorney and signed by both parties. The settlement agreement is thereafter made an order of court.
3. How much does a divorce cost in South Africa?
The cost of a divorce in South Africa depends on various factors, such as whether the divorce is contested or uncontested. It goes without saying, that an uncontested divorce is far less costly than a contested divorce.
Other factors that will determine the cost of a divorce include:
– whether there are minor children involved
– whether child maintenance or spousal maintenance (alimony) is being claimed
– how much property and debt there is between the parties
– the conduct of the parties to the divorce
– And the cost of the attorneys
4. How to apply for a divorce in South Africa
If you want to divorce your spouse arrange a consultation with a divorce lawyer who will obtain all information from you to draft the relevant documentation to proceed with the divorce action.
You will be required to give the divorce lawyer a:
copy of your identity document
marriage certificate
birth certificates of any minor children born from the marriage
and the ante - nuptial contract (ANC)
Once the divorce lawyer has consulted with you, you will be advised whether or not your divorce is an uncontested divorce or a contested divorce.
If your divorce is uncontested, the divorce lawyer will take further instructions from you to draft a divorce summons and/or divorce settlement agreement. If your divorce is contested, a divorce summons will be drafted.
This divorce summons will either be issued out of the High Court or the Regional Court having jurisdiction over your divorce.
The summons will be forwarded to the relevant Sheriff for service on your spouse. The party who institutes the divorce action is referred to as the Plaintiff.
The party upon whom the divorce summons is served is referred to as the Defendant.
Once the divorce summons has been served on your spouse, your spouse will have 10 working days to defend the divorce summons.
If your spouse fails to defend the divorce summons, your lawyer proceeds to obtain a hearing date on the court roll.
On the date of the hearing of the uncontested divorce, when your case is called, you will go to the witness box where you will be sworn in by taking the oath.
Thereafter, the divorce lawyer will lead your evidence, after which a Final Order of Divorce will be granted.
Approximately three weeks later you will be notified by your lawyers offices that you may collect the typed Court Order.
Should your spouse defend the divorce summons, he or she will have 20 working days to reply to the allegations contained in the divorce summons. This reply to the divorce summons is called the plea.
Your spouse’s plea will in all likelihood be accompanied by a counter-claim, in which your spouse will set out certain claims, as you would have done in your summons.
You will then have 20 working days to reply to your spouse’s counter-claim. This reply is called a plea to the Defendant’s counter-claim.
Once the above steps have been taken, a period of 20 working days will need to lapse to allow for pleadings to close, where after the application is made for the allocation of a trial date for the hearing of your divorce matter.
Various pre-trial procedures required by the rules of court are followed following the application for a trial date, which is necessary to prepare for trial.
The trial will then start on the allocated date.
We hope for the fairy tale, but don’t always get it. It is in your best interests to at least have some idea of the proceedings when divorce comes your way.