Can A Spouse Refuse To Get Divorced In South Africa?

14 April 2023

South Africa celebrates Human Rights Day on 21 March each year to commemorate how far the development and recognition of human rights for all people have come. Occupying a central place amongst these human rights, as espoused in our Constitution, is freedom. Freedom entails that a human being should not be detained arbitrarily and also should not be ‘locked’ in an institution against their will.

In this article, we shall discuss whether a spouse may ‘lock’ their spouse in a marriage by refusing to consent to the dissolution of a marriage.

Can a spouse ‘lock’ their spouse in a marriage by refusing to participate in divorce proceedings?

No. If either party in a marriage wants to proceed with divorce proceedings, they do not need the other party’s consent to do so.

Although no consent is required from the other party, they must be informed of their spouse’s decision to proceed with a divorce by receiving proper service of the divorce summons by the sheriff.

Can a Spouse Refuse to be Part of the Divorce Process?

In criminal proceedings, it is a recognised principle of our law that an accused may opt to exercise their right to remain silent. Likewise, in civil proceedings, a defendant/respondent may also elect not to respond to the averments raised against them.

However, this refusal to participate has legal consequences. The defendant runs the risk of the court granting a divorce decree on the terms as prayed for and often more favourable to the plaintiff.

What happens when a spouse deliberately prevents the service of the divorce summons upon them?

The plaintiff’s attorney will apply to court to direct a suitable manner through which the defendant may be served with the divorce summons through an application for substituted service. The court will direct that summons can be served by way of, inter alia, e-mail, Whatsapp, Facebook or publishing in a local newspaper.

What happens when a defendant, having received a divorce summons, ignores the summons?

The defendant runs the risk of default judgment being entered against them after the court is fully satisfied that summons has been properly served on the Defendant and that the time allowed for entering a notice to defend has lapsed without the defendant entering same.

The Defendant has ten business days from the summons’ service date to file a Notice of Intention to Defend. If no such notice is received, the plaintiff may apply for default judgment and request that the court grants relief as prayed for in the summons.

My spouse is refusing to negotiate a settlement; what should I do?

A party cannot be forced into a settlement agreement as it needs to be entered into voluntarily.

Settlement negotiations aim to find common ground on the issues in dispute to save time, cost and effort in the divorce process. Where a spouse declines an offer for settlement negotiations, the matter will proceed on a defended basis.

What if a Party Deliberately Prolongs the divorce by failing to submit documents after a Notice of Intention to Defend has been served?

If the Defendant fails to submit their plea to the plaintiff’s particulars of claim, the plaintiff’s attorney can serve a Notice of Bar on the Defendant, allowing them an additional five days to file their plea. If they fail to do so, the plaintiff can apply for default judgment against the defendant.

Suppose the defendant fails to participate in divorce proceedings after filing their Notice of Intention to Defend, they run the risk of the divorce decree being granted by the court on such terms and conditions that may be unfavourable to them.

Participating in divorce proceedings allows both spouses to be heard, resulting in equitable outcomes for both parties.

Our law recognises the spouses’ rights to choose whether to stay in marital relationships.  Consequently, this means that a spouse may not ‘lock’ their spouse in a marriage against their will by not participating in divorce proceedings nor refusing to consent to the divorce.

We urge spouses to seek assistance in instituting or defending divorce proceedings. Contact one of our divorce attorneys and family law specialists at Burger Huyser Attorneys to ensure that your rights and interests are protected.

DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE