Can you get a divorce without your spouse’s consent?

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Our law does not require your spouse's consent to get divorced regardless of religious beliefs.
Our law does not require your spouse's consent to get divorced regardless of religious beliefs.

While the reasons for wanting a divorce may be complex, ultimately, if you're thinking of splitting up there are some basic processes that must be followed.

But does your spouse need to know about these, and agree? 

The answer to this question may vary when asked from a religious perspective as opposed to a legal one, says Deborah Di Siena, of Di Siena Attorneys

Some religions require your spouse's consent before you are considered to be divorced. However, our law does not require your spouse's permission to get divorced regardless of your religious beliefs.

You will, however, need to satisfy the court that the marriage has broken down irretrievably or that other grounds exist for the granting of a divorce, for example, mental illness.

Notify your spouse

While you do not have to obtain your spouse's consent, you are still required to notify your spouse of your intention to get divorced.

This notice will take the form of a summons, which sets out your reasons for the breakdown of the marriage, provisions regarding children's residence and maintenance, spousal maintenance and your claim for the division of assets. Your divorce summons will then be served to your spouse by the sheriff of the court.

Once your spouse has received the summons, he will have ten days to decide if he is going to defend the summons.

Must read: What are the grounds for divorce in South Africa?

Unopposed divorces

An uncontested divorce can arise in two instances, the first being a situation where the sheriff has served the summons, and your spouse fails to defend the action. In this instance, the court may grant you a decree of divorce by default.

The second instance is where prior to issuing the summons, you and your spouse both wish to get divorced and enter into a written settlement agreement regulating the proprietary consequences of your divorce.

If the court is satisfied, the court will then grant a decree of divorce incorporating the agreement of settlement.

This process can be concluded in a few weeks.

Also read: Women in customary marriages now have equal rights to marital property

Opposed divorces

The alternative is when your spouse decides that he is going to defend your claim for divorce.

This does not mean that you now need his consent (as often your spouse will also wish to get divorced), it simply means that they do not agree with the claims you have made in your summons.

Your spouse will defend your claims and file a counterclaim.

The action for divorce will, therefore, be opposed and may result in a trial should you and your spouse not reach a settlement before the trial date. It can take two years to get a trial date, and this process can be very expensive. 

Our law does make provision for what is termed a "do it yourself divorce". While this may seem like a cost-effective option, it is advisable to consult with an attorney to advise you on your rights and duties before you issue a summons against your spouse.

This applies particularly when there are children involved.  

Parent24's #dignifieddivorce series is here to help parents navigate the legal and emotional implications of a divorce.  

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