Understand the Grounds for Divorce and Adultery

Divorce is a significant decision that can be emotionally and legally complex. In South Africa, the divorce process is governed by the Divorce Act, which outlines the procedures and requirements for dissolving a marriage.

In South Africa, adultery is recognised as a contributing factor to the irretrievable breakdown of a marriage under the Divorce Act 70 of 1979. Although South Africa follows a no-fault divorce system, which does not require proving fault, adultery remains a common reason for marital dissolution.

According to the Act, a marriage is deemed irretrievably broken if the spouses can no longer maintain a normal marital relationship. This breakdown can be demonstrated by showing that one spouse has committed adultery, rendering the continuation of the marriage intolerable for the other party.

At Burger Huyser Attorneys, we aim to guide you through this process with clarity and compassion. Below, we explain how to start, lodge, and complete a divorce in South Africa. 

In South Africa, a divorce can be granted on the following grounds:

  • Irretrievable Breakdown of the Marriage: This is the most common ground and requires proof that the relationship cannot be restored.
  • Mental Illness or Continuous Unconsciousness: In rare cases, these medical conditions can form the basis for divorce.

Decide Between Contested and Uncontested Divorce

  • Uncontested Divorce: This is the simplest and most cost-effective option. Both parties agree on key issues, such as child custody, division of assets, and maintenance.
  • Contested Divorce: If there is disagreement on any aspect, the divorce becomes contested, requiring court intervention to resolve disputes. This process can be lengthy and costly.

Initiate the Divorce Process

To start a divorce in South Africa, you must follow these steps:

  1. Consult an Attorney: It is advisable to seek legal advice to understand your rights and responsibilities. An attorney will help you draft the necessary documents and represent your interests throughout the process.
  2. Issue a Summons: The divorce process begins with the issuing of a summons. This document is filed with the High Court or Regional Court and must be served to your spouse by the sheriff of the court.
  3. Respond to the Summons: If you are the respondent, you must file a notice of intention to defend (if contesting) or an agreement to settle the terms of the divorce.

Address Key Issues Necessary in the Divorce Process

During the divorce proceedings, several critical matters must be resolved:

  • Division of Assets: South African law recognizes three marital property regimes:
    • In community of property
    • Out of community of property with accrual
    • Out of community of property without accrual The division of assets depends on the marital regime agreed upon at the time of marriage.
  • Child Custody and Maintenance: The court prioritizes the best interests of the child when determining custody and support arrangements.
  • Spousal Maintenance: Depending on the circumstances, one party may be required to pay maintenance to the other.

Lodge the Divorce

Once all the necessary documents are prepared and signed, the case is scheduled for a hearing. In an uncontested divorce, the process is straightforward and may be finalized on the first court date. For contested divorces, additional hearings and legal proceedings may be required.

Finalise the Divorce

The divorce is finalized when the court grants a decree of divorce. This legally dissolves the marriage and outlines the terms agreed upon or imposed by the court.

Key Considerations for the Divorce Process

  • Legal Representation: Having an experienced attorney ensures that your rights are protected and the process runs smoothly.
  • Mediation: In some cases, mediation can help resolve disputes amicably, reducing the need for prolonged court battles.
  • Costs: The cost of divorce varies depending on whether it is contested or uncontested. Uncontested divorces are generally less expensive.

Contact Burger Huyser Divorce Attorneys

Navigating the divorce process can be overwhelming, but you don’t have to go through it alone. At Burger Huyser Attorneys, we specialize in family law and are committed to providing you with expert legal guidance tailored to your unique circumstances. Whether you’re initiating a divorce or need assistance with related matters, our team is here to help.

Contact us today for a confidential consultation and take the first step toward a new chapter in your life.

Contact Burger Huyser Attorneys, and book a consultation.

To speak to one of our experienced attorneys in South Africa for immediate assistance, contact us on the numbers below:

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 call 061 515 4699; Bedfordview call 061 536 3223

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