Although the divorce process in South Africa is relatively straightforward, the financial and emotional costs can be high. Bear these legal, financial and emotional considerations in mind when going down this road.
In an uncontested divorce, you both work together to agree on divorce terms. You need to decide who will get custody of the children and how access arrangements will work. You will also need to agree on how maintenance payments (if any) will be paid and how your property and other assets will be divided. This may have been set out in your marriage contract.
Both parents have a legal duty to support their children. If you can’t agree on how much maintenance is needed, the court will make the decision for you. Couples who are unable to agree on a divorce settlement can employ the services of an attorney and/or professional mediator to help them negotiate and reach an agreement. This is called a mediated divorce.
Contested divorces occur when you can’t reach an agreement about maintenance, division of assets and childcare. In some cases, both spouses might refuse to settle for emotional reasons. These divorces can be extremely costly, take a long time and are usually very stressful for all parties involved.
In South Africa, the consequences of civil marriages are regulated by law – and even the most amicable divorce needs to be dissolved by a court. In the past, most divorces were lodged in the High Court, which meant high costs. In 2010, this issue was addressed with the Regional Courts Amendment Act that allows regional divisions of the magistrates’ courts to also deal with divorce cases.
To start the divorce process, you need to have a summons served on your soon-to-be-former spouse (the defendant). This summons must be served personally by the sheriff of the court. Your spouse then has 10 days (or 20 if they live in a different province) to respond. Acceptable reasons for wanting a divorce include adultery, abuse, abandonment, loss of affection and mental illness. If the summons is ignored, the court will decide on behalf of the absent spouse. It will often grant the divorce on the terms mentioned in the summons.
Note: When it comes to customary marriages, the settlement usually depends on customs and traditions. For example, a wife’s family may have to give back any lobola that was paid prior to the union. Muslim couples who are married by an Imam and Hindu couples who are married by a priest can get divorced without going to court. Again, the settlement is based on the rituals and practices of the religion.
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