In South Africa, divorces generally fall into two categories:
- Contested (opposed); and
- Uncontested (unopposed).
Uncontested Divorce
For all parties involved, an uncontested divorce is usually the most beneficial, cost-effective and efficient option. Where both spouses are able to reach agreement on the terms of the divorce – particularly around finances, property division and arrangements for minor children – an uncontested divorce can be finalised in as little as four weeks. In contrast, a contested divorce can take many months or even years to conclude.
Divorce in South Africa
Because South Africa follows a no-fault divorce system, a court will grant a divorce once one spouse shows that the marriage has irretrievably broken down and that there is no reasonable prospect of restoration. It is not necessary to prove wrongdoing or blame before a court can dissolve the marriage – and even where one party does not consent to the divorce, the court may still grant the order.
The Procedure
The spouse wishing to end the marriage must issue a summons against the other spouse. In an uncontested divorce, the summons is usually accompanied by a written settlement agreement (commonly referred to as a “consent paper”), which regulates the terms of the divorce. Where the divorce is opposed, the terms will ultimately be determined by the court after hearing evidence, and where required expert input.
While each consent paper is tailored to the particular circumstances of the couple, it should address all financial consequences of the divorce and division of assets in a clear and enforceable way. Where minor children are involved, it must also regulate parental responsibilities and rights, including primary residence, contact arrangements and maintenance obligations, to ensure that the best interests of the children remain central.
In opposed divorce proceedings, there are important procedural steps and time periods which must be followed. For example, a defendant must file a notice of intention to defend within 10 days of receiving the summons, followed by a plea (with or without a counterclaim). If these steps are not taken, the plaintiff may proceed to obtain a divorce order without further participation from the defendant, which may have serious consequences.
Get Proper Legal Guidance Early
Whichever route your divorce ultimately follows, proper legal advice from the outset is essential. Effective guidance early in the process limits risk, avoids unnecessary delays and ensures that your rights, and those of your children, are properly protected.
Need Asiistance?
If you are considering a divorce, or if you have already received a summons, you are welcome to contact our offices for assistance. We can guide you through the process and help you reach a final resolution that is fair, enforceable and practically workable going forward.