Written by Andrea Hiestermann
29 July 2022

When couples decide to divorce, it gives rise to various legal and practical issues that need to be resolved. The couple needs to discuss how they would like to divide their assets and liabilities, as well as the arrangements regarding their minor children. These arrangements include but are not limited to the minor children’s primary residence, visitation rights and child maintenance. These legal issues need to be addressed, irrespective of whether the marriage is in-community property or out-of-community property.

WHAT IS THE DIFFERENCE BETWEEN A CONTESTED AND AN UNCONTESTED DIVORCE IN SOUTH AFRICA?

The divorce is contested when the parties cannot reach an agreement, either on all the divorce-related aspects or merely some of them.

The divorce is uncontested when the parties have agreed on how they will divide their assets and liabilities as well as suitable arrangements for any minor children that the parties may have together.

WHAT IS THE LEGAL PROCESS FOR AN UNCONTESTED DIVORCE IN SOUTH AFRICA?

  1. One or both parties will consult with an attorney to discuss their needs.
  2. Once it has been established that both parties are in agreement on settling the divorce, a roundtable or telephone consultation is held to discuss all the aspects related to the divorce.
  3. Once the parties have agreed to all aspects, the attorney will draft a Settlement Agreement that complies with the requirements of the Court, the Divorce Act 70 of 1979, the Children’s Act 38 of 2005, and the Magistrate’s Court Act 32 of 1944.
  4. Both parties will have to sign the Settlement Agreement and initial every page.
  5. A Summons will then be issued out of the Regional or High Court where the matter will be heard – it will have the parties’ names and details in the Summons and will refer to the parties as the Plaintiff and Defendant. The Plaintiff is usually the person who initiated the proceedings. The Summons will also include the signed Settlement Agreement. Once the document has been issued, a case number is allocated to the document, and the formal legal process begins.
  6. The Plaintiff’s attorney will instruct the sheriff to serve the Summons on the other party – referred to as the Defendant, at their residential or employment address. If the Defendant does not file a Notice of Intention to Defend, the matter will proceed on an uncontested basis.
  7. If the parties have minor children, the Family Advocate’s offices need to endorse the Settlement Agreement to ensure that the arrangements regarding the minor children are in the best interest of the minor children. The Family Advocate does not charge any fees.
  8. Once the Family Advocate has endorsed the arrangements regarding the minor children, an application for a court date will be made. The date will be on the unopposed roll, which is usually within 2 to 12 weeks.
  9. On the day of the hearing, the matter will be presented to the Magistrate or Judge, who will review the Summons along with the Settlement Agreement. The Plaintiff’s attorney will lead verbal evidence. If the Judge or Magistrate thinks that the terms and conditions are in order and in the best interest of the minor children, the divorce will be granted and made an order of Court.

HOW LONG DOES AN UNCONTESTED DIVORCE TAKE IN SOUTH AFRICA?

An uncontested divorce is much more cost- and time-effective and can be finalised within two months, provided parties agree on the terms and conditions of the Settlement Agreement.

The aforementioned timeframe also depends on the availability of court dates and when the sheriff successfully serves the Summons on the Defendant. Most attorneys will always urge parties to settle, as it is a lot faster, cheaper and less stressful. However, if one party is unreasonable with their demands, the other party is left with no other option but to proceed on a contested basis.

WHAT IS THE LEGAL PROCESS FOR A CONTESTED DIVORCE IN SOUTH AFRICA?

The legal process in a contested divorce varies from one matter to the next. However, it follows a similar procedure:

  1. One or both parties will consult an attorney to discuss what they wish to obtain from the divorce concerning the division of assets, child and/or spousal maintenance, primary residence, and contact with minor children.
  2. Once it has been established that the parties are not in agreement on the terms and conditions of the divorce and settlement is not possible, formal proceedings will commence.
  3. The attorney for the Plaintiff (the person initiating the divorce) will proceed to draft and serve the Summons on the Defendant. The Summons will set out the Plaintiff’s case, what they are seeking from the Court, as well as the grounds on which they are seeking the specific order.
  4. After Summons has been served on the Defendant, the attorneys for the Defendant will have ten days to file a Notice of Intention to Defend. The aforementioned is a formal notice to inform the Court that they disagree with the Plaintiff’s Summons and want to oppose the divorce.
  5. After the Notice of Intention to Defend has been served and filed, the Defendant has 20 days to file a Plea. A Plea is the Defendant’s answer or defence to the Plaintiff’s allegations. In most cases, the Defendant’s attorneys will also file a counterclaim, which will set out the order they are seeking, as well as the grounds on which they are seeking the order.
  6. After the Plea has been served and filed, the Plaintiff has 15 days to file a Replication of the Defendant’s Plea. Replication is the Plaintiff’s answer or defence to the allegations raised in the Defendant’s Plea and/or Counterclaim.
  7. The attorneys will have the opportunity to serve and file other documents and bring interlocutory applications if they deem it necessary. The parties will also file Discovery Affidavits, setting out which documents they intend to use when the trial commences.
  8. After pleadings have closed, discovery has taken place, and the pre-trial hearing has been held, the attorney can apply for a trial date.
  9. On the day of trial, the matter will be argued before the Magistrate or Judge. Both parties will have the opportunity to present their evidence, and the Presiding Officer will make a ruling.

HOW LONG DOES A CONTESTED DIVORCE TAKE IN SOUTH AFRICA?

A contested divorce takes longer to finalise and is more expensive than an uncontested divorce. However, if there are no prospects of reaching an amicable settlement agreement, opposed legal proceedings should be initiated as soon as possible.

A contested divorce can take anything from 8 months to years to finalise, depending on how complex the divorce is, how busy the relevant court’s role is, as well as interlocutory applications brought whilst serving and filing documents.

Your attorney will always attempt to settle before placing the matter on the roll for trial. This is because approaching the Court needs to be seen as the last resort, as most divorcing couples are capable of reaching an agreement without wasting time and money on battling it out in Court.

Should you wish to divorce your spouse, or if you have been served with a divorce summons, do not hesitate to contact one of our branches to schedule an appointment with one of our specialist contested divorce lawyers in South Africa.

For immediate assistance, please contact us on the following cell numbers: 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