Written by: Marni Huyser
17 September 2024
Under What Circumstances Can You File for Divorce in South Africa?
Divorce is a complex process, both emotionally and legally. However, understanding the legal steps to file for divorce in South Africa can help you navigate the process more smoothly. At Burger Huyser Attorneys, we are committed to guiding you through every step, ensuring that your rights are protected and your case is handled with care and professionalism.
South Africa is a no-fault divorce jurisdiction, which means you do not need to prove wrongdoing (such as adultery or abuse) by your spouse to file for divorce. According to the Divorce Act 70 of 1979, South African law requires that you provide valid reasons for requesting a divorce. The two main grounds for divorce in South Africa are:
- Irretrievable breakdown of the marriage: This means the marriage has deteriorated to the point where there is no reasonable prospect of reconciliation. Examples include prolonged separation, infidelity, or inability to communicate effectively.
- Mental illness or continuous unconsciousness: Divorce can also be granted if one spouse has been declared mentally ill or has been continuously unconscious for an extended period, as certified by medical experts.
Where Can You File for Divorce in South Africa?
In South Africa, only a High Court or Regional Court of the Magistrate’s Court can grant a divorce. A court will have jurisdiction in your divorce case if:
- Either spouse resides in the court’s jurisdiction at the time the divorce is filed.
- One or both parties are ordinary residents within the court’s jurisdiction on the filing date, or at least one spouse has been a resident of South Africa for no less than one year before that date.
Types of Divorce in South Africa
There are two primary types of divorce in South Africa: uncontested and contested.
- Uncontested Divorce: This occurs when both parties agree on all the terms of the divorce, such as the division of assets, child custody, and maintenance. Uncontested divorces are quicker, less costly, and less emotionally taxing.
- Contested Divorce: In a contested divorce, the parties cannot reach an agreement on critical issues, and the court must intervene to resolve disputes. These divorces are more complex, often requiring legal representation and can take longer to finalise.
Steps to File for Divorce in Divorce Procedures in South Africa
The divorce procedure in South Africa necessitates parties filing for divorce to follow specific steps:
1. Consult with a Divorce Attorney
The specifics of your divorce (whether contested or uncontested) will determine the procedures you must follow. It is highly advisable to seek legal counsel before initiating the divorce process. An experienced divorce attorney will help you understand your rights, the applicable laws, and what to expect throughout the proceedings.
2. Drafting the Summons
The divorce process formally begins with the issuance of a summons. This document informs your spouse that you are seeking a divorce and outlines your claims, such as child custody, division of assets, and spousal support. The summons must be filed at the High Court or the Regional Court of the Magistrate’s Court, depending on the complexity of the case.
3. Serving the Summons
Once the summons has been issued, it must be served on your spouse by the court sheriff. Your spouse has ten business days to respond (if they live in the same area as the court) or 20 business days (if they live outside the area). If no response is received within the stipulated period, the divorce can be uncontested.
4. Responding to the Summons
If your spouse chooses to contest the divorce, they will file a counterclaim or a plea. This document will outline their response to the summons and their claims. If both parties reach an agreement after discussions, the divorce can proceed as uncontested.
5. The Divorce Trial
In a contested divorce, the case will proceed to trial. Both parties will present their evidence, and the court will make a final ruling on matters such as property division, child custody, and spousal support.
6. Finalising the Divorce
Once all issues have been resolved, either through agreement or court ruling, the court will issue a divorce decree. This decree finalises the divorce and outlines the terms both parties must adhere to, such as child support or maintenance payments.
Key Considerations in Filing for Divorce
1. Division of Property
South Africa follows different matrimonial property regimes:
in community of property, out of community of property with accrual, and out of community of property without accrual. The regime under which you are married will dictate how your assets and liabilities are divided.
- Divorce in the community of property: Both assets and debts are shared equally.
- Divorce out of community of property with accrual: Each party keeps their assets, except for the growth in assets during the marriage.
- Divorce out of community of property without accrual: Each party retains their assets and liabilities acquired before and during the marriage.
2. Child Custody and Maintenance
When children are involved, the court will prioritise their best interests. Child custody can be awarded to one parent, or both parents can share joint custody. Child maintenance (child support) is another crucial issue and will be determined based on the child’s needs and both parents’ financial situation.
3. Spousal Maintenance
In some cases, one spouse may be entitled to receive spousal maintenance (alimony) from the other. The court considers factors like the length of the marriage, the financial needs and resources of both parties and the standard of living during the marriage when making decisions about spousal maintenance.
How Long Does the Divorce Process Take in South Africa?
The time it takes to finalise a divorce depends on whether the divorce is contested or uncontested. An uncontested divorce can be completed in as little as six weeks, while a contested divorce can take several months or even years, depending on the complexity of the issues involved (For more information read this blog: How to Get a Divorce Immediately?). The South African divorce procedure and proceedings can become lengthy and costly if not managed properly. Ensure that you acquire the best legal representation for your divorce matter from the start.
How much does it cost to file for divorce in SA?
The cost of divorce will vary based on whether it is contested or uncontested. An uncontested divorce is usually more affordable, with fees primarily for legal advice and court filings ranging from R 8000 to R 15 000. A contested divorce, on the other hand, involves more significant legal costs due to the lengthier process and the need for expert representation. Please consult with one of our specialist divorce attorneys on how much divorce costs in South Africa.
Need Expert Help In Filing For Divorce? Contact Our Experienced Attorneys Today For A Consultation
Filing for divorce in South Africa can be challenging, but with the right legal guidance, it does not have to be overwhelming. 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 your rights and interests are protected.
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
