Divorce is an ugly situation no couple ever wants to find themselves in.
But the rate of divorce is on the rise all over the world with rates escalating for developed countries and as it seems, developing countries like South Africa are following suit.
As it turns out, the chances of your first marriage being your last are getting lower and you have to be ready when the time comes to make the difficult decision.
This comprehensive guide on how to file and process a divorce in South Africa will enlighten you about the whole process.
What is Divorce?
Divorce involves the cancelling and/or reorganizing of the legal duties and responsibilities of marriage.
At the end of a divorce process, the marital bonds between the couples are completely dissolved and both parties go on and live their separate lives without any duty and obligation to the other.
Divorce can only be done by a court and the couple is required to present a lawyer during the process of the divorce petition.
Divorce is a hectic process which is why most couples avoid it. It is even worse when there are children involved as who takes custody of the children will be taken into account during the process. Sometimes, the couple would get into a heated court battle for the custody of the children.
In most cases, there will be a sharing of properties owned by both couples. The way the property will be shared will depend on the number of properties owned by the couple, the type of marriage and the duration the couple have been married.
It is important to consider every option and seek the counsel of a divorce lawyer when planning to file for divorce.
Who is a Divorce Lawyer?
A divorce lawyer is an attorney that deals with issues relating to divorce, spouse support, child custody and visitation, and child support. Divorce lawyers specialize in family law so they are able to guide couples seeking divorce on the right steps to take during the process.
It is important to seek the counsel of a divorce lawyer when planning to get a divorce. The lawyer will educate you on the implications and requirements. He will also be the one to stand for you in court during the divorce hearing and will defend you in a situation where your partner decides to take full custody of the children or your properties.
In some cases, a spouse might request for maintenance from you if he/she is unemployed. The court will definitely grant such a request if the spouse is able to prove it beyond the reasonable doubt. This is another area you should make known to your lawyer.
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Grounds (Requirements) for Divorce in South Africa
Even the court frowns at divorce and has set up different requirements that should warrant a divorce petition. If the petitioner is unable to convince the court of one of the requirements listed below, the court will refuse to hear such petition and strike it out.
The following requirements are the only grounds on which a petitioner can file for divorce.
- If the marriage was unconsummated willingly or by a refusal of one or both of the partners. This could be quite difficult to prove, however, the court requires you prove that no consummation has taken place before the hearing of the petition commenced
- If the respondent has engaged in an extramarital affair (adultery)
- If the petitioner finds the conduct of the respondent unreasonable making it difficult for the petitioner to live peacefully with the respondent (such unreasonable conduct could include, rape, drunkenness, in prison, attempted murder, and domestic abuse)
- If the respondent has abandoned the petitioner for a continuous period of time of at least one year prior to the filing of the petition. Abandonment is also known as desertion and will only be taken into consideration in court if the respondent leaves without the consent of the petitioner.
- If both parties have been living separately for a period of two years prior to the filing of the divorce petition. This will only be considered as a ground for divorce if the respondent does not object to petitioner’s decision of filing for divorce.
- In other cases, if both parties have been living apart for a continuous period of 3 years prior to the filing of the divorce petition.
- If the respondent fails to comply with a court order of restitution of conjugal rights made under the order. However, the period must be about one year prior to the filing of the divorce petition.
- If the respondent is dead or the petitioner has reason to believe that the respondent is dead.
Types of Marriage in South Africa
The type of marriage both parties fall under should also be considered before filing for divorce. There are mainly two types of marriage which are statutory and customary marriage.
Statutory marriage is a type of marriage that’s contracted in a customary court and is considered legal by law. However, some marriages done in churches such as the Catholic Church is considered statutory.
Customary marriage is a type of marriage that’s contracted under traditional laws and customs.
Only parties that fall under statutory marriage are eligible to file for divorce in court.
Divorce Process in South Africa: Filing a Divorce Petition in South Africa
The divorce petition is to be filed by the partner seeking for the dissolution of the marriage otherwise known as the petitioner. It is not a straightforward process as the court, upon receiving the petition, will ascertain if the petitioner meets the necessary requirements to file a divorce petition.
The petitioner might also be asked to provide further proof that his/her partner otherwise known as the respondent has committed the offences or behaved in an unreasonable manner as stated by the petitioner.
The court will also try to ensure that both parties have exhausted all forms of reconciliation, especially in cases where children are involved. In a situation where this is ineffective, the court will grant the petitioner the right to divorce the respondent.
How to Start Divorce Proceedings in South Africa
If you are considering getting a divorce in South Africa, there are certain steps you need to follow in order to start the process. The following guide will give you a general overview of how to start divorce proceedings in South Africa.
|Step 1: Consult with an Attorney||It is highly recommended that you consult with an attorney who specializes in divorce to help you navigate the legal process. They can advise you on your rights, obligations, and options for settling the divorce.|
|Step 2: Complete the Summons and Particulars of Claim||The summons and particulars of claim are legal documents that initiate the divorce process. They outline the grounds for the divorce, such as irretrievable breakdown of the marriage, and provide details about the parties and their matrimonial regime.|
|Step 3: File the Documents with the Court||Once the summons and particulars of claim have been completed, they must be filed with the court in the jurisdiction where you or your spouse reside. The court will issue a case number and assign a magistrate to the case.|
|Step 4: Serve the Documents on your Spouse||The summons and particulars of claim must be served on your spouse by a sheriff or process server. Your attorney can arrange for this to be done. Your spouse has a limited time to respond to the documents.|
|Step 5: Negotiate a Settlement||Once the divorce process has been initiated, the parties may begin negotiations to settle the divorce. This may involve mediation, arbitration, or direct negotiations between the parties and their attorneys.|
|Step 6: Attend Court Hearings||If the parties are not able to reach a settlement, the case may go to court. The parties will be required to attend court hearings to present evidence and arguments in support of their case.|
|Step 7: Finalize the Divorce||If the court grants the divorce, a decree of divorce will be issued. The decree will include details about the division of assets, child custody, and any other relevant matters. The divorce will be finalized once the decree has been issued.|
Starting divorce proceedings in South Africa can be a complex and emotionally challenging process. It is important to work with an experienced attorney who can provide guidance and support through each step of the process.
Remember to always prioritize your own wellbeing and the wellbeing of your family throughout the divorce process.