Raising a family together is hard work, and sometimes marriage and relationships don't survive. But splitting up when there are kids involved is even harder. Parent24's #dignifieddivorce series is here to help parents navigate the legal and emotional implications of a divorce.
Read more in the #dignifieddivorce series here: Can you get a divorce without your spouse’s consent?
It’s an inescapable truth: more and more married couples are calling it quits and getting divorced in South Africa. In fact, the latest statistics released by StatsSA indicate that fewer couples are tying the knot and an increasing number of married folk end up in divorce court.
Of course, dissolving a marriage isn’t’ as simple as breaking up and going separate ways; it’s a legal process that must be recognised and approved in a court of law.
Do note: only a High Court or Regional Court can grant a divorce order.
So, if you have unfortunately reached a point in your marriage where you think getting a divorce is your only option, LAW FOR ALL shares the steps involved:
A basic step-by-step guide to getting divorced in South Africa
1. To start the divorce process, a spouse must serve a summons on the other spouse through the Sheriff of the court. A summons is 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
Must read: Women in customary marriages now have equal rights to marital property
2. When the summons is served, the spouse that’s on the receiving end will then have 10 days to serve a notice of intention to defend the matter, if they do not agree to the proposal or particulars of the claim. After the notice of intention to defend is served, the other party will have 15 days to serve and file a plea .Of course, if they do agree to the proposals, you can enter into a settlement agreement and have it made an order of the court.
3. 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 who doesn’t attend and will possibly grant the divorce on the terms mentioned in the summons.Of course, while the process can be summarised in three seemingly simple steps, the reality is divorce cases can go on for quite some time (up to 3 years), especially if the divorce is contested.
There are also other considerations that you should prepare for, namely:
Custody and access to children
If there are children born from the marriage, custody and access arrangements must be considered and agreed on. If common ground cannot be reached, the Court will make a decision that is in the children’s best interest (with the help of the Family Advocate).
What’s more, even if the terms regarding minor children are met, the settlement agreement should be referred to the Family Advocate for endorsement.
Both parents have a legal duty to support their children, but if a couple can’t agree on the maintenance amount that must be paid, the court will make a decision that is reasonable. What’s more, in the unfortunate event that you cannot come to an agreement, it might be a good idea to take the matter to the Maintenance Court as a separate issue.
This will likely speed up the actually divorce proceedings and reduce the costs.
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 ante-nuptial agreement was signed.
It can be quite a complicated process, with lots of legal aspects to navigate. As always, it’s absolutely vital that you seek professional legal help.
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