Every year, dreams of marital bliss are shattered as more and more married couples call it quits and are getting divorced in South Africa. In fact, the latest statistics released by StatsSA indicate that fewer lovebirds are tying the knot and an increasing number of couples end up in divorce court.
Having to deal with (and move on) from a failed marriage is no walk in the park. While the law and divorce process seems straightforward, the reality is that getting divorced in South Africa can be stressful, time-consuming, expensive and, not to mention, emotionally draining.
Sometimes marriages can be saved with counselling, but often it isn’t possible to pick up the pieces and put it back together. To minimise consequences, it’s good to have a basic understanding of the divorce process and your legal rights. We’ve put together a basic guide to getting divorced in South Africa.
Getting Divorced in South Africa – Dissolving a Marriage
Legally, couples can walk away from their marriage by ending it through a divorce. The law acknowledges different types of marriage in South Africa, and the divorce process and consequences depend on how a couple got married:
Civil Marriages, Civil Unions and African Customary Marriages
Civil marriages, civil unions and customary marriages can only be dissolved by a South African court. The court will want to make sure that the marriage has irretrievably broken down and that there are no reasonable prospects of restoring the relationship. This is the case where a couple has not lived together for a year, there is abuse, adultery, addiction or loss of love and affection. Other possible grounds include mental illness or sustained unconsciousness.
The consequences of civil marriage and civil unions are regulated by law, while with customary marriages, the consequences usually depend on the relevant customs and traditions. For example, a wife’s family may have to give back the lobola.
Hindu and Muslim Marriages
If a Muslim couple were married by an Imam or a Hindu couple by a priest, they could get divorced without going to court, and they will get divorced in terms of the rituals and practices of their religion.
Important Considerations Before Getting Divorced in South Africa:
Of course, it isn’t just as simple as approaching a court and signing a few documents; there are a lot of things that need to be considered and solutions explored before a court will grant a divorce:
1. Contested vs Uncontested Divorce
We’ve all heard of divorces getting messy, and this usually happens when a couple cannot agree on the terms and conditions of the divorce. This is considered to be a contested divorce, and it usually means going through a court proceeding or trial to resolve any issues, with each party employing their own lawyer. This is generally rather lengthy and expensive.
It’s important to keep in mind that it doesn’t matter whose fault the divorce is and that a divorce can be granted even if one spouse doesn’t really want to get divorced. If there are valid grounds, the court will issue a divorce order.
On the other hand, an uncontested divorce means that both parties agree on the terms of their divorce and work with lawyers to resolve any issues or disagreements. This is quicker and cheaper than a contested divorce. If spouses settle even before a summons is issued, it will make the process much easier. Where kids are involved, a parenting plan is also necessary. The court will want this agreement to be endorsed by the family advocate just to make sure that the best interests of the children are protected.
2. Custody and Access of Children
If there are children born from the marriage, things like custody and access arrangements must be considered and agreed on. If a couple can’t find common ground about who will take care of the children, the Court will make a decision that is in the children’s best interest (with the help of the Family Advocate).
3. Maintenance
Both parents have a legal duty to support their children, but if a couple can’t agree on how much maintenance must be paid, the court will make a decision that is reasonable in each case.
4. Dividing Property
The division of property, debt and assets must also be sorted out. If the couple can’t agree, their belongings will be divided according to the marital regime they married into. This depends on whether or not an antenuptial agreement was signed.
To learn more about the different marital systems and why it is a good idea to sign an antenuptial before you get married, read our insightful blog article.
How to Get Divorced – Summons
Only a High Court or Regional Court can grant a divorce order. To start the divorce process, a spouse must serve a summons on the other spouse through the Sheriff of the court. A summons is basically a legal document that informs the other spouse that a divorce has been filed, describes the grounds for the divorce, what is being asked for, sets out any arrangements about custody, maintenance and property and informs the other spouse of rights and responsibilities concerning the case. Primarily, the divorce summons contains the following:
- Date and location of the marriage.
- Names and addresses of both spouses
- Details of any children
- Reason(s) for the divorce
When the summons is served, the spouse that’s on the receiving end will then have 10 days (or 20, if they live in a different province) to respond and agree (uncontested) or defend (contested) the divorce.
If the summons is ignored, the divorce can still be heard and granted by the court. It basically means that the court will decide on behalf of the spouse that doesn’t attend and will possibly grant the divorce on the terms mentioned in the summons.
We’ve Got Your Back!
At LAW FOR ALL, we understand that divorces are tough on the pocket and the heart. That’s why our all products include a Divorce Benefit to help give you peace of mind. Policyholders that want to get a divorce or have received a divorce summons can get in touch with our Legal Advisors for legal advice and guidance. A Mediator is assigned to look at the case from all angles and try to reach a settlement agreement. It’s important to keep in mind that the Mediator is there to advise and guide the parties to make decisions and has no authority to make decisions. This especially helpful to negotiate fairly and resolve issues as soon as possible. Once a settlement has been reached, the Mediator will put it in writing.
Our affordable policies provide cover to go to court to get a divorce order. For more information, have a look at the LAW FOR ALL policies and services.
—