Divorce Law

Navigating Divorce in South Africa: Frequently Asked Questions

a lady taking off her wedding ring with her sad husband in the background

Divorce is a challenging and emotional journey for anyone, regardless of the duration of the marriage or the circumstances which have led to its breakdown. The divorce process follows specific legal procedures and regulations and, if you’re considering filing for a divorce, you probably have many questions, which we are here to answer! In this post, we aim to help you navigate divorce in South Africa and address some of the most frequently asked questions.

  1. What are the grounds for divorce?

The divorce process in South Africa is primarily governed by the Divorce Act 70 of 1979 (“the Divorce Act”), which provides for the “no fault” system. This means that, to obtain a divorce, neither you nor your spouse are required to prove wrongdoing or misconduct by either party during the course of the marriage.

The only ground for divorce in South Africa is “irretrievable breakdown of the marriage”, which can be supported by factors such as:

  • loss of love and respect;
  • no meaningful communication;
  • no longer living together as husband and wife and
  • the absence of common interests and goals.
  1. How long does it take to get divorced?

The time taken to finalise a divorce varies according to multiple factors such as whether the divorce is opposed or unopposed, the complexity of the issues in dispute if opposed and the capacity of the court system.

An unopposed divorce, which occurs when both spouses are able to agree on the terms of the divorce (such as those relating to care of, contact with and maintenance of minor children, the division of assets and liabilities and spousal maintenance), typically takes between 3 to 6 months to finalise.

An opposed divorce, depending on the circumstances of the case, can take anywhere up to 3 years to finalise as our court system is extremely backed up and trial dates are usually only available +- 2 years from date upon which you apply for such trial date.

  1. What is an opposed divorce?

An opposed divorce occurs where spouses are unable to reach an agreement in relation to various aspects of the divorce, such as those relating to care of, contact with and maintenance of minor children, spousal and/or rehabilitative maintenance and the division of assets and liabilities.

Opposed divorces generally take longer to finalise and require the Court to make a decision as to how the issues in dispute between the spouses will be resolved.

For more info on the opposed divorce process, visit our previous article which outlines the process:

  1. How are assets and liabilities dealt with in consequence of divorce?

The division of assets and liabilities on divorce depends on various factors, such as the matrimonial property regime to which the marriage is subject to (in community of property, out of community of property with the application of the accrual system or out of community of property without the application of the accrual system), the specific circumstances of the marriage and whether the spouses are able to reach an agreement as to the division of their assets and liabilities.

For example, with regard to the specific circumstances of the marriage, section 9(1) of the Divorce Act allows a court to:

“make an order that the patrimonial benefits of a marriage be forfeited by one party in favour of the other, either wholly or in part, if the court, having regard to the duration of the marriage, the circumstances which gave rise to the breakdown thereof and any substantial misconduct on the part of either of the parties, is satisfied that, if the order for forfeiture is not made, one spouse will in relation to the other be unduly benefited.”

The first step in determining how assets and liabilities are dealt with in consequence of divorce is to determine if an Ante Nuptial Contract exists between the parties and what such contract provides for. It involves a fact finding process of what each parties assets and liabilities are at the date upon which the parties wish to get divorced and to divide such assets in accordance with the marital regime the parties chose when they got married.

  1. What about arrangements in respect of care of, contact with and maintenance of minor children?

Arrangements in respect of the care of, contact with and maintenance of minor children are critical aspects of divorces wherein minor children are involved.

According to section 28(2) of the Constitution of the Republic of South Africa, 1996 “a child’s best interests are of paramount importance in every matter concerning the child”.

Where spouses have reached an agreement in relation to the aspects of the divorce which concern their minor children, the Court will not make such agreement an Order of Court unless the agreement has been endorsed by the Office of the Family Advocate.

Where spouses have not reached an agreement with regard to care of, contact with and maintenance of the minor children, the parties have the option of approaching the family advocate or an independent psychologist in order to make reccomendations into the best interest of the minor children in the particular circumstances and which recommendations the courts are guided by.

  1. Do I need the assistance of an attorney to get divorced?

While it is not legally required to have an attorney represent you for purposes of your divorce, it is highly recommended. An experienced family law attorney provides legal guidance, can assist in negotiating settlement agreements and ensures that all legal requirements are met in order for the divorce to be finalised as swiftly as possible.

Family law attorneys also have experience in what approaches the courts usually adopt in the circumstances and therefore, in order to ensure that a divorce runs smoothly and each party walks away with that which they are entitled to, it is best to consult with an attorney before embarking on the divorce process.

  1. What about mediation?

Although mediation, as an alternative dispute resolution mechanism, is still a voluntary process, it is now mandatory for parties to prospective legal proceedings to consider mediation and the possibility of settlement prior to instituting litigation and to inform the Court as to whether or not they believe the matter is capable of being mediated. Mediation is a valuable tool and can assist in resolving issues relating to divorce in a more amicable, timeous and cost-effective manner.

  1. Can I change my surname after I have obtained a divorce?

You are entitled to change your surname once your divorce has been finalised. Simply visit your nearest Department of Home Affairs office, present a copy of your decree of divorce and identity document and complete the required form.

  1. What are the costs involved in getting divorced?

The costs associated with a divorce vary significantly depending on factors such as whether the divorce is opposed or unopposed and the complexity of the issues in dispute if opposed. Such costs include the fees you will pay to your attorney, Sheriff’s fees and, if applicable, the fees incurred by the involvement of other professionals such as, for example, valuators, actuaries, social workers and psychologists.

Unopposed divorces can usually be decided on a fixed fee before beginning the process, whereas opposed divorces usually incur an hourly fee, depending on how many hours and how much work is undertaken during such process.

  1. What if my spouse and I live in different provinces or countries?

In terms of the Divorce Act, a South African court will have jurisdiction to grant your divorce where eitheryou or your spouse:

  • are domiciled within the area of the court’s jurisdiction on the date on which the divorce summons is issued;
  • are ordinarily resident within the area of the court’s jurisdiction on the date on which the divorce summons is issued; or
  • have been ordinarily resident in South Africa for a period of not less than one year prior to the date on which the divorce summons is issued.

Where your spouse lives in a foreign country, and your spouse is the defendant in the matter, you are required to approach the court by way of an edictal citation application for permission to serve the divorce summons on your spouse in the foreign country prior to the issuing thereof. As divorce concerns an individual’s status, the court needs to be satisfied that the divorce summons was served on your spouse personally by an official of the court in the foreign country. Your spouse, after service of the summons, will have a period of one month within which to enter an intention to defend same.

 

A divorce can be emotionally challenging and seeking professional guidance and support is essential. This post provides a general overview of frequently asked questions regarding the South African divorce process, but is not a substitute for legal advice tailored to your specific circumstances. It’s always best to consult with an experienced family law attorney, such as JJB Attorneys, who can provide you with the most accurate and up-to-date information based on your situation.

If you would like assistance with divorce or the divorce process, please do not hestitate to contact JJB Attorneys to assist with the process.

Contact JJB Attorneys for assistance with your divorce