How Long Does a Divorce Take in South Africa?
It depends on whether or not the divorce is defended and if the divorce is capable of being settled between the parties.
Generally, there are two types of divorce in South Africa: uncontested divorce and contested divorce.
An uncontested divorce is the quickest and most cost-effective way to get divorced. An uncontested divorce occurs if your spouse fails to defend a divorce summons or when the divorce is settled relatively quickly after it commences. An uncontested divorce is by far the best and most cost-effective way to get divorced for all parties concerned. An uncontested divorce can be finalised within 2 to 6 weeks, depending on how cooperative the parties are and their willingness to settle.
A divorce is contested when the parties cannot reach an agreement regarding certain aspects of their divorce, such as the division of assets, child custody and contact, child maintenance, spousal maintenance, etc. A contested divorce can take anywhere from a few months to a few years to finalise, depending on the conduct of the parties and how intent the parties are on finalising their divorce.
What is the Fastest way to get a Divorce?
An uncontested divorce is the quickest and most cost-effective way to get divorced in South Africa. In an uncontested divorce, either one spouse will simply not defend the divorce summons, or the parties will work together with one attorney to come to a fair settlement, after which a settlement agreement is drafted by the attorney and signed by both parties. The settlement agreement is thereafter made an order of court.
How much does a Divorce Cost in South Africa?
The cost of a divorce in South Africa depends on various factors, such as whether the divorce is contested or uncontested. It goes without saying, that an uncontested divorce is far less costly than a contested divorce.
Other factors that will determine the cost of a divorce include, the complexity of the divorce, whether there are minor children involved, whether child maintenance or spousal maintenance (alimony) is being claimed, how much property and debt there is between the parties, as well as the conduct of the parties to the divorce.
Attorneys’ fees are time-based, so the cost of the divorce is usually dependant on the amount of time the attorney spends trying to finalise the divorce. Seeing as attorney’s fees are time-based and dependant on the conduct of the parties, it is very difficult to say exactly what a divorce will cost, as the merits of every divorce are different.
It is apparent from the above, that it is impossible for a divorce lawyer to accurately tell you what the cost of your divorce will be at the onset of the divorce proceedings. Divorce lawyers do not know exactly what will happen during the divorce, the duration of the divorce proceedings or what the nature and extent of the disputes between yourself and your spouse will be.
How to Apply for a Divorce in South Africa
If you want to divorce your spouse, kindly contact our offices to arrange a consultation with a divorce lawyer. The divorce lawyer will obtain all relevant information from you to enable us to draft the relevant documentation to proceed with the divorce action. You will be required to furnish the divorce lawyer with a copy of your identity document, marriage certificate, birth certificates of any minor children born from the marriage, and the antenuptial contract (ANC), if applicable, together with any other relevant documentation requested by the divorce lawyer relating to the assets of the estate etcetera.
Once the divorce lawyer has consulted with you and has obtained all relevant information, you will be advised whether or not your divorce is an uncontested divorce or a contested divorce. If your divorce is indeed an uncontested divorce, the divorce lawyer will take further instructions from you in order to enable him or her to draft a divorce summons and/or divorce settlement agreement, as the case may be. If your divorce is contested, a divorce summons will be drafted.
This divorce summons will either be issued out of the High Court or the Regional Court having jurisdiction over your divorce, depending on the circumstances of the divorce. The summons will thereafter be forwarded to the relevant Sheriff for service on your spouse. In divorce proceedings, the party who institutes the divorce action is referred to as the Plaintiff. The party upon whom the divorce summons is served is referred to as the Defendant.
Once the divorce summons has been served on your spouse, your spouse will have 10 court days (10 working days) to defend the divorce summons. If your spouse fails to defend the divorce summons, we can then immediately proceed to obtain a hearing date on the uncontested divorce roll for the hearing of your uncontested divorce. The hearing date could be between a week or two from the date upon which such hearing date is applied for.
On the date of the hearing of the uncontested divorce, the divorce lawyer will meet you at court, where he will prepare you for the questions you will be asked in court. When your case is called, you will go to the witness box where you will be sworn in by taking the oath. Thereafter, the divorce lawyer will lead your evidence, after which a Final Order of Divorce will be granted. Approximately three weeks later you will be notified by our offices that you may collect the typed Court Order from our reception.
Should your spouse defend the divorce summons, he or she will have 20 court days (20 working days) to reply to the allegations contained in the divorce summons. This reply to the divorce summons is called the plea. Your spouse’s plea will in all likelihood be accompanied by a counterclaim, in which your spouse will set out certain claims, as you would have done in your summons. You will then have 20 court days to reply to your spouse’s counterclaim. This reply is called a plea to the Defendant’s counterclaim.
Once the above steps have been taken, a period of 20 court days (20 working days) will need to lapse in order to allow for pleadings to close, where after application is made for the allocation of a trial date for the hearing of your divorce matter. Various pre-trial procedures required by the rules of court are followed following the application for a trial date, which are necessary to prepare for trial. The trial will then take place on the allocated trial date.
Can I Claim a Portion of my Spouse’s Pension Fund upon Divorce?
This depends on how the parties were married, i.e., the marital regime in terms of which the parties were married (in community of property, or out of community of property with or without the accrual system). Neither party will have a claim to their spouse’s pension if they were married out of community of property without the accrual system.
The parties may, however, agree to give their spouse a portion of their pension fund in terms of a settlement agreement. If the parties were married out of community of property with the accrual system and the pension/s were not expressly excluded from the accrual in terms of an Antenuptial Contract, then a party would be entitled to a portion of their spouse’s pension. Likewise, if the parties were married in community of property, each party would be entitled to a portion of their spouse’s pension.
What is Divorce Mediation?
Divorce mediation is a settlement process entered into voluntarily by a married couple who want to get divorced. Divorce mediation provides couples with the option of planning their future in a rational, respectful and amicable way. The objective of divorce mediation is to reach a custom-made agreement suitable to the parties’ family dynamic, taking into account their finances and various other factors. This objective is reached with the assistance of an experienced divorce lawyer, who will guide and advise both parties throughout the mediation process.
What are the Benefits of Divorce Mediation?
Many married couples choose divorce mediation instead of entering into the typical process of divorce litigation because they find it to be more beneficial for themselves and their families. The most common reasons couples choose divorce mediation instead of divorce litigation are:
- It is more affordable
- It takes less time to get divorced
- They have more control over the divorce process
- It allows them to communicate more effectively instead of having to do so via two different divorce lawyers, which can often lead to misinterpretation or miscommunication
- It promotes the spirit of co-operation
- It allows for better decision-making; and
- It is emotionally protective of the parties, as well as their children.
Can I Divorce my Spouse who lives in another Country? (International Divorce)
Yes. You can divorce your spouse in South Africa, if your spouse lives abroad. Likewise, you can divorced in South Africa if you live abroad. You can get divorced in South Africa if you are either domiciled or ordinarily a resident in South Africa, even if you are not a South African citizen. See the“International Divorce” section on our website for more information.
Can I Divorce my Spouse if I don’t know where he or she is? (Substituted Service Divorce)
Yes. In terms of South African law, you can divorce your missing spouse by way of a process called divorce by way of substituted service. An application for substituted service is made in a divorce court, requesting the judge to grant an order to allow the divorce summons to be served in a manner other than the “usual” way of personal service by sheriff. Once the order for substituted service is granted, the summons will be “served” in the prescribed manner and the divorce process will commence.
In most “missing spouse” divorce cases, the Defendant does not oppose the divorce action. The Plaintiff (the person who instituted the divorce proceedings) may then ask for a divorce by way of default judgment.
Can my Spouse Stop me from getting a Divorce?
No. Your spouse cannot stop you from getting divorced. You cannot be forced to stay in a marriage which you no longer wish to be a part of. It is your right to get divorced, should you wish to do so.
Can I Divorce my Spouse without going to court in South Africa?
No. A divorce can only be granted by a South African High Court or Regional Court having jurisdiction over the parties’ divorce, which is instituted by way of a divorce summons.
Can I handle my own Divorce or Should I use a Divorce Lawyer?
Yes. You have the right to handle your own divorce without engaging the services of a divorce lawyer. However, it is always advisable to secure the services of an experienced divorce lawyer, as the process is almost always complex and can have dire consequences if not handled correctly.
Case in point: most people go to a reputable hairdresser or barber to cut their hair and choose not to cut their hair themselves out of fear that they will not achieve their desired result – the same can be said for handling your own divorce. If you are not acquainted with the laws and procedures in respect of divorce proceedings, handling your own divorce can, as we have seen on many occasions before, have a detrimental and costly effect in the long term, especially when there are children and assets involved.
See “Is a DO-IT-YOURSELF divorce right for you?” section on our website for more information.
Who is Liable for Child Maintenance?
Both parents are jointly liable for maintenance towards their minor child until the child is self-supporting. If the parents disagree on how much maintenance is payable, one parent can approach the Maintenance Court in the area in which the minor child resides who will then consider the affordability of each parent to contribute towards the maintenance of the minor child by looking at their income, expenses and the reasonable maintenance needs of the minor child.
The Maintenance Court will then order that the parties pay a certain amount of maintenance in accordance with each party’s financial means on a pro-rata scale. The issue of child maintenance during divorce proceedings is usually dealt with during the divorce negotiations, and not necessarily in the Maintenance Court.
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