How to Start Divorce Proceedings in South Africa
Understanding the legal divorce process and procedures in South Africa can make the initial steps to starting a divorce less daunting. The divorce process begins with filing a summons and particulars of the claim at either the Regional Court or High Court with jurisdiction over the area where one of the spouses resides. The spouse filing for divorce, called the “plaintiff,” needs to prove to the court that the marriage has broken down irretrievably and that reconciliation is no longer possible. Once the summons is issued, it must be served on the other spouse, known as the “defendant,” by the sheriff of the court. The defendant then has a set time to respond, which leads to one of two scenarios: an uncontested divorce or a contested divorce.
What is the Difference Between Contested and Uncontested Divorce Proceedings in South Africa?
The main difference between contested and uncontested divorce proceedings in South Africa lies in the level of agreement between the spouses on divorce terms.
Uncontested Divorce: This occurs when both spouses mutually agree on all aspects of the divorce, including division of assets, child custody arrangements, and maintenance obligations. An uncontested divorce is generally faster (between three to six weeks), less costly, and can be completed with minimal court involvement, as both parties have already reached an agreement that just needs court approval. Typically, only the plaintiff must attend court to finalise the proceedings, which are often concluded within weeks.
Contested Divorce: A contested divorce happens when spouses cannot agree on one or more aspects of the divorce. This requires more extensive legal procedures, including negotiations, divorce mediation, and potentially a trial, where a judge decides on unresolved issues such as asset division, custody, child maintenance, spousal maintenance and applying for interim relief through Rule 43 applications. Contested divorces are generally more protracted and more expensive due to the involvement of legal teams, financial disclosures, and court appearances. Such divorces can take months or even years to finalize, depending on the level of dispute.
Choosing between an uncontested and contested divorce depends on the complexity of the marital estate, children’s welfare considerations, and both parties’ willingness to reach an amicable resolution. The costs of divorces in South Africa and how long a divorce takes in South Africa will also largely depend on which divorce course spouses choose to take.
Registration of Divorce Proceedings in South Africa
Registration of divorce proceedings is an essential step in finalising the divorce. This process involves officially recording the divorce decree with the Department of Home Affairs to update the marital status of both parties.
Filing the Divorce Order: Once a judge grants the divorce and issues a decree, the order must be registered with Home Affairs. This ensures the marriage is formally dissolved, and both parties’ marital status is updated to “divorced.”
Updating Identity Documents: After registration, individuals may update their identity documents to change their marital status or revert to a maiden name.
Registering the divorce with Home Affairs is crucial for avoiding future complications, such as issues with remarriage, property ownership, or pension funds.
Uncontested Divorce Proceedings & Steps in South Africa
The steps for an uncontested divorce are:
Agreement: Both parties must reach a settlement agreement that details how assets will be divided, parenting arrangements (if applicable), and any maintenance obligations.
Filing: Once the agreement is signed, it is filed with the court, and a court date is set.
Court Appearance: Only the plaintiff typically needs to appear in court to present the settlement for approval. The judge will review the settlement, and if it is deemed fair, the divorce is granted.
Contested Divorce Proceedings & Steps in South Africa
The contested divorce procedure involves:
Discovery: Each spouse discloses their financial details to facilitate a fair division of assets.
Negotiations and Pre-trial: The attorneys may attempt to negotiate to settle any points of dispute.
Trial: If settlement efforts fail, the divorce proceeds to trial, where both parties present their cases before a judge, who will decide on unresolved issues.
Given the complexity and potential length of contested divorces, legal fees can be substantial, and the emotional toll can be high.
Divorce Procedure for Marriages in Community of Property in South Africa
In South Africa, marriages in community of property mean that both spouses share joint ownership of all assets and liabilities acquired before and during the marriage. Upon divorce, all assets and debts are divided equally between spouses. Key steps for the divorce procedure in community of property in south africa include:
Asset Valuation: An assessment is made of the joint estate, including all assets and debts.
Division: The joint estate is divided equally unless there’s a court order stating otherwise. This equitable division ensures that both parties receive their fair share, providing a sense of security and fairness in the process.
Maintenance: Depending on each one’s financial situation post-divorce, either spouse may be required to provide spousal maintenance.
While this process may seem straightforward, complications arise if one spouse has accumulated significant debt or if disagreements about asset valuation arise.
Divorce Procedure for Marriages Out of Community of Property in South Africa
Marriages out of community of property, with or without accrual, involve separate estates. In these cases:
Out of Community of Property Without Accrual: Each spouse retains ownership of their individual property and liabilities. There is generally no claim on each other’s estate upon divorce unless specific agreements were made.
Out of Community of Property With Accrual: The antenuptial contract with accrual in South Africa allows for fair division of assets accrued during the marriage. When divorce proceedings commence, the net increase in each spouse’s estate value is calculated, and the spouse with the lesser accrual is entitled to half the difference.
These processes can be less complicated than divorces in community of property, as each spouse typically retains control over their assets and liabilities.
Ensure You Follow the Correct Proceedings for Your Divorce. Contact Our Experienced Attorneys Today For A Consultation
Divorces in South Africa can be challenging, but understanding the proceedings can help you navigate this difficult time. If you’re considering divorce or need guidance on any aspect of the legal process, consulting with an experienced family law attorney can provide clarity and support during this challenging time. For more information on divorce law in South Africa, filing for a divorce , filing a summons to responding to the served documents, or assistance with your case, Contact Burger Huyser Attorneys, who are specialists in all aspects of family law, divorce proceedings and divorce procedures in South Africa. When considering divorce, seeking legal advice early on can help streamline the process and provide clarity on the best path forward. Contact our experienced and trusted divorce lawyers today for personalised legal assistance tailored to your needs.
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
