When Does the Divorce Process Begin?
The divorce process officially starts when one spouse files a divorce summons with the High Court or the Regional Court of the Magistrate’s Court. This summons must be served on the other spouse to notify them of the divorce proceedings.
The primary legislation governing divorce in South Africa is the Divorce Act 79 of 1979, which outlines various aspects related to divorce. However, other laws also come into play, including the Marriages Act 25 of 1961 and the Recognition of Customary Marriages Act 120 of 1998, which first determine whether a valid marriage exists. Once a marriage is established, the Matrimonial Property Act 88 of 1984 regulates how the division of matrimonial property will be handled. These laws are crucial in guiding divorce proceedings.
What are the Legal Grounds for Divorce in South Africa?
South African law recognizes the following legal grounds for divorce:
Irretrievable Breakdown of the Marriage: This is the most common ground for divorce, where the marriage has deteriorated to such an extent that there is no reasonable prospect of restoring the relationship. Examples include:
- One spouse committing adultery.
- Abuse, either physical, emotional, or psychological.
- Long-term separation, indicating the couple is no longer in a marriage relationship.
- Persistent conflict or differences.
Mental Illness: If a spouse has been institutionalized for a serious mental illness for at least two years and there is no hope of recovery, divorce can be granted.
Continuous Unconsciousness: If one spouse has been unconscious for at least six months, divorce can be pursued.
What Documents Are Needed in the Divorce Procedure?
To initiate the divorce process, several documents must be prepared:
- Summons: The formal legal document that begins the divorce process.
- Marriage Certificate: A certified copy of the marriage certificate must be provided to the court.
- ID Documents: Copies of both spouses’ identity documents.
- Children’s Birth Certificates (if applicable): When children are involved, their birth certificates are needed.
- Settlement Agreement: In uncontested divorces, a settlement agreement outlining the division of assets, spousal maintenance, child custody, and child maintenance must be provided.
- Financial Records: These may include salary slips, tax returns, and proof of assets for financial settlements.  In South Africa, financial disclosure in divorce proceedings is a critical part of the legal process where both parties are required to provide a full and frank disclosure of their financial situation.Â
How Much Does Divorce Cost in South Africa?
The costs of divorces in South Africa varies depending on whether the divorce is contested or uncontested:
Uncontested Divorce: Typically, an uncontested divorce can range from R8,000 to R15,000. These divorces are usually quicker and less costly since both parties agree on the terms of the divorce.
Contested Divorce: A contested divorce can be significantly more expensive, ranging from R50,000 to R150,000 or more, depending on the complexity of the issues in dispute, such as child custody, division of assets, and spousal maintenance. Court appearances and the time taken for negotiations add to the costs of contested divorces.
Divorce Procedure and Process for Contested Divorce
A contested divorce occurs when the spouses cannot agree on key issues, such as the division of property, child custody, or spousal support. The process and duration for a contested divorce includes the following steps:
- Issuing a Summons: The spouse initiating the divorce serves a summons outlining their claims.
- Defendant’s Plea: The other spouse (the defendant) can file a plea contesting the terms of the summons.
- Discovery and Settlement Negotiations: Both parties exchange financial and personal documents. Attorneys may attempt to negotiate a settlement to avoid a trial.
- Trial Preparation: If no settlement is reached, the case proceeds to trial. Each party will present evidence and arguments.
- Court Judgment: After the trial, the judge will make a decision on the unresolved issues, such as asset division, custody, and maintenance.
Divorce Procedure and Process for Uncontested Divorce
An uncontested divorce is quicker and the costs of uncontested divorces more cost-effective, as both parties agree on the terms of the divorce. The process for an uncontested divorce includes:
- Issuing a Summons: A summons is served, but since both parties agree, this step is typically straightforward.
- Settlement Agreement: A written settlement agreement is drawn up, detailing the division of assets, child custody arrangements, and maintenance obligations. Both parties sign this document.
- Court Appearance: In many cases, only the spouse filing for divorce needs to appear briefly in court to confirm the settlement.
- Final Decree: If the court is satisfied that the settlement is fair, a divorce decree is granted, finalizing the process.
Why Do I Need an Attorney for the Divorce Process?
While it is possible to represent yourself in a divorce, there are several reasons why hiring a trusted divorce attorney is advisable:
- Legal Guidance: An attorney ensures that your rights are protected, and you understand the legal implications of your decisions.
- Negotiation Skills: Attorneys can help negotiate fair settlements, particularly in contested divorces where emotions often run high.
- Court Representation: If your divorce is contested, you will need an attorney to represent you in court, ensuring that your case is presented in the best possible way.
- Expertise with Legal Procedures and Marriage Regimes: Divorce involves specific legal documents and processes, and an attorney will ensure that all procedures are followed correctly and efficiently. The type of marriage regime and or antenuptial contract spouses agreed upon requires sound legal guidance, for instance, a spouse married in community of property initiating or defending a divorce will also be guided on the correct divorce procedure in community of property and advised on the respective rights and implications of such marriage agreements.
- Expert legal knowledge and implementation of divorce settlements, calculation of accrual in divorce proceedings, parenting plans, child custody matters and more.
How Much Does a Divorce Lawyer Cost in South Africa?
The cost of hiring a divorce attorney in South Africa varies based on the complexity of the case and the attorney’s experience. Typically, divorce attorneys charge an hourly rate that ranges between R1,500 and R3,500, with the exact fee depending on the attorney’s level of expertise and the location of their practice. More experienced attorneys tend to charge on the higher end of this range.
Need Expert Legal Advice to Start the Divorce Process? Contact Our Experienced Attorneys Today For A Consultation
Understanding the divorce procedures in South Africa is crucial to ensuring that you are adequately prepared for the legal journey ahead. Whether your divorce is contested or uncontested, seeking legal advice from a skilled attorney can provide the support and guidance you need to navigate the process more smoothly and protect your rights.
Contact Burger Huyser Attorneys, our experienced divorce lawyers offer expert legal support to guide you through the divorce process, providing tailored advice to meet your specific needs. Whether you need assistance with settlement negotiations or require court representation, our team is here to help.
Randburg call 061 516 6878; Roodepoort call 061 516 0091; Sandton call 064 555 3358;  Pretoria call 064 548 4838;
Centurion call 061 516 7117; Alberton callÂ
DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE
