A Comprehensive Guide to Divorce Law in South Africa: Process, Rights and Considerations

Divorce can be a difficult and emotional process for anyone, but understanding South Africa's divorce laws can help make the process as smooth as possible. In this article, we'll provide a comprehensive guide to divorce law in South Africa, including legal requirements, types of divorce and the divorce process.

What is Divorce?

Divorce is the process whereby a marriage is legally terminated and involves the termination of the legal duties and responsibilities that arose out of the marriage, the division of property where there is a joint estate, spousal maintenance, child maintenance, care and contact rights and obligations pertaining to children, etc.

In South Africa, divorce is regulated by the Divorce Act 70 of 1979, which outlines the legal requirements, procedures, and rights associated with divorce. Whether you are contemplating or going through a divorce, it's crucial to understand the divorce law in South Africa, including the process, rights and considerations involved.

Divorce Process in South Africa: The divorce process in South Africa typically involves several steps. It starts with one spouse (the plaintiff) formally initiating divorce proceedings by serving a summons on the other spouse (the defendant). The defendant then has a certain period to respond to the summons. If both parties agree on the terms of the divorce, they can proceed with an uncontested divorce, which is a quicker and less expensive process. However, if there are disputes regarding issues such as property division, child custody, and alimony, the divorce becomes contested and may require court intervention. The court may also order mediation or other alternative dispute resolution methods to resolve disagreements.

Types of Divorce

A divorce can proceed in 1 of 2 ways, namely on an uncontested basis or on a contested basis.

• Uncontested/Unopposed Divorce

  This divorce occurs where the married couple mutually agree to get divorced and mutually agree upon the terms of their divorce. The divorce then proceeds on an unopposed basis and this process is far more efficient, simpler and cost-effective than an opposed divorce.

  This type of divorce is initiated by the parties executing a settlement agreement which meets the requirements of the Divorce Act and Court requirements. If there are minor children born from the marriage the settlement agreement needs to be endorsed by the offices of the Family Advocate to determine the best interest of the minor children.

• Contested/Opposed Divorce

This divorce occurs where the married couple are unable to agree either to get divorced or upon the terms applicable to their divorce. These types of divorces are usually very acrimonious. Where the parties are unable to agree, the divorce will proceed on a contested or opposed basis and both parties are usually represented by attorneys.

Divorce Process

You can get a divorce in either the Regional Court of the Magistrate Court or in the High Court having jurisdiction in your area.

Uncontested divorces: you are required to complete and submit the necessary forms which can be obtained from your local magistrate’s court. This form of divorce is much simpler, cost effective and shorter than the contested divorce process.

Contested Divorces: are commenced by having a summons issued at court and then served personally on your spouse (i.e. defendant) by the sheriff of the court. Contested divorces involve going through all the various stages of litigation to obtain a judgment or divorce decree.

Divorce Rights in South Africa

In a divorce, both parties have legal rights that are protected by South African law and these rights include:

1. Property Division: In South Africa, marital property is generally divided based on the principles of equitable distribution, which means that property acquired during the marriage is typically shared equally, unless there are compelling reasons for an unequal distribution.

2. Child Custody: When it comes to child custody, the best interests of the child are paramount in South African law. The court will consider factors such as the child's age, needs, and wishes, as well as the parents' ability to care for the child, in determining custody arrangements.

3. Maintenance/Spousal Support: South African law recognizes that one spouse may be entitled to financial support from the other after divorce. The court will consider factors such as the duration of the marriage, the financial needs of the parties, and their respective earning capacities in determining alimony or spousal support.

Divorce Considerations in South Africa

There are several important considerations to keep in mind during the divorce process in South Africa:

1. Grounds for Divorce: South African law recognizes specific grounds for divorce, such as irretrievable breakdown of the marriage, mental illness or continuous unconsciousness. It's essential to understand the grounds for divorce and provide sufficient evidence to support your claim.

2. Legal Representation: While legal representation is not mandatory in a divorce, it's highly recommended to seek the assistance of an experienced divorce lawyer. A qualified attorney can guide you through the legal process, protect your rights, and help you achieve a favorable outcome.

3. Mediation and Collaborative Divorce: Mediation and collaborative divorce are alternative dispute resolution methods that can help couples reach mutually acceptable agreements without going to court. These options can be more cost-effective and less adversarial than traditional litigation, and may be beneficial in preserving relationships and minimizing conflicts.

What are the Grounds for a Divorce?

In South Africa, divorces are granted on the basis or ground that there has been an irretrievable breakdown of the marriage relationship. There are many reasons why a marriage relationship can have irretrievably broken down e.g. abuse (physical or verbal), adultery, medical reasons, mental illness, incarceration, incompatibility, etc.

A civil marriage and customary marriage need to be dissolved by a court. In order to prove an irretrievable breakdown of the marriage, the court must be satisfied that the marriage has broken down and that there is no reasonable prospect of reconciliation. This is often referred as "no-fault divorce".

One of the most important things to understand about South Africa's divorce laws is that they require that couples have been separated for at least one year before they can apply for a divorce. This means that couples must have been living separately for at least 12 months before they can file for divorce.

Conclusion: Divorce can be a complex and emotionally challenging process, and understanding the divorce law in South Africa is crucial to navigate it successfully. From the divorce process and rights to important considerations, being informed about the legal aspects of divorce is essential. If you are considering or going

Specialist Divorce Attorneys

It's important to note that the divorce process can be complicated and time-consuming. Once you have decided that you need a divorce, it is recommendable to go and see an experienced attorney who specialises in divorces and family law matters to get the necessary advice. Where divorces are acrimonious, you will need to be represented by a competent and savvy divorce lawyer who is able to best protect you in the divorce proceedings.

At Barter McKellar, we pride ourselves on being one of the top family and divorce law practices in Johannesburg with our divorce attorneys having extensive experience in this field of law having worked on various complicated and high-value divorces. Our highly skilled and experienced family lawyers are pragmatic, personable and able to effectively advise you on all aspects of your divorce. Our goal is to place you in the best possible position to get the outcome you want. Going through a divorce is an exceptionally difficult time that requires you to make life-changing decisions about your future.

If you need assistance with a divorce, please feel free to contact our offices to schedule an appointment with one of our specialist divorce attorneys.