Divorce process in South Africa
The divorce process in South Africa is relatively straightforward. However, often, individuals have to wait for a long time for their divorce to go on trial as the court system has a high number of cases.
Divorce is instituted by the issuing of a summons. The process can be done at the Regional Court of the Magistrate Court having jurisdiction in your area or in the High Court. To initiate the process, you need to serve summons. A divorce summons is unique in that it must be served personally on the defendant by the sheriff of the court.
There are typically two types of divorces, the contested or uncontested. An uncontested divorce is often favourable in many ways and also cost-effective for individuals involved. There are however many people who think they can drag the divorce process or hold another person ransom by ignoring summons. Such a divorce process once a summons has been served can be administered through the default divorce process. A default divorce is a form of uncontested divorce. A court will grant a divorce by default if you serve a divorce summons on your spouse and they do not respond.
In a default divorce, the plaintiff prepares a summons setting out his/her claims with or without the help of an attorney. A court issues the summons and a sheriff serves the summons on the defendant. The summons specifies the number of days in which the defendant has to file a notice of intention to defend, thus, contest the divorce (10 days when the parties live within the jurisdiction of the court or 20 days if they live in different provinces). If the defendant does not answer by way of a notice of defense within the set time, the plaintiff may approach the court to enroll the divorce on the court roll and conclude the divorce on the defendant’s default. In such a case, only the plaintiff appears in court.
Some courts do request that a notice of set down (a document stating where and when the divorce will be heard) be served on the defendant personally or by registered post. It is advisable to contact your spouse to find out why he/she has not defended. Although you can seek a default divorce when the time limit in the summons lapses without the defendant’s response, your spouse could also come back and try to get the divorce set aside by claiming that the delivery was not proper and that there was a good excuse for missing the deadline. It is therefore better to give your spouse every opportunity to respond.
You can institute divorce on your own by approaching your local Regional Court of the Magistrate Court which will provide the necessary forms and give guidance on how to conclude your divorce.
It is however advisable to seek the assistance of an attorney with family law experience or to involve a qualified mediator in cases where there are substantial assets, retirement annuities or pension funds as well as children. The attorney will assist with drafting a parenting plan as well as a settlement agreement.
Obtaining a copy of divorce decree South Africa
To obtain a copy of your decree, contact the Registrar of the High Court, where the matter was dealt with. Follow this link for the contact details for the High Courts on the Office of the Chief Justice’s website: www.judiciary.org.za/index.php/contact-us/regional-court
Legal Aid South Africa also has a very useful Self-Help Divorce Guide. This guide is designed to assist you in obtaining a decree of divorce in a Regional Court in South Africa. It gives general information only and doesn’t take the place of legal advice. Click this link to access the guide: https://legal-aid.co.za/2018/09/26/divorce-guide/
