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 does not take the place of legal advice. Obviously, it also cannot provide specific advice about your divorce only a lawyer can do that (and help you to protect all of your rights).

Use of this guide for self-help should be limited to uncontested divorces where there are no contentious or complicated issues regarding the children, division of the property (or debts), maintenance or pension. In any case where a divorce is or becomes contested or any complications arise (particularly with regard to any of the above), it may be best to have a lawyer represent you in your divorce.

Where this guide goes beyond the scope of the uncontested, simple and uncontentious divorce, it is merely to provide you with information and understanding as to the general process and what steps your attorney is likely to take and should not be used to attempt to do these things without legal assistance – much like you would not operate on your own body from a book but might want to understand what is going to happen.

Getting Started

Before you get into preparing the summons and sending it off to start the process, let us first address some preliminary questions:

How much does it cost to get a divorce?

In the case of an unopposed divorce (ie there is no dispute between yourself and your spouse about the divorce or what should happen), your fees are likely to be limited to the Sheriff’s fees and minor expenses for transport, photocopies, etc. Sheriff’s fees can vary widely, depending on the distance he has to travel and how many attempts he has to make at serving pleadings on the opposing party, but generally these fees would be a few hundred rand. It is a good idea to contact the Sheriff and ask him for an estimate before asking him to serve pleadings.

Where a divorce is opposed, the costs become unpredictable and entirely dependant on the specifics of the case, but it can get very expensive very quickly.

What can I do if I need an attorney and I cannot afford one?

If you find that you do need legal assistance, but you cannot afford an attorney, you might qualify for legal aid. You can approach Legal Aid South Africa, your local University Law Clinic or your nearest Law Society to enquire about your situation and the availability and your eligibility for legal aid.

You can also approach the court and ask for an order compelling your spouse to contribute to your legal costs. You do this by way of a so-called ‘rule 58’ application, discussed in more detail here.

How long does it take to get divorced?

Where a divorce is unopposed and there are no complications or children involved, it can sometimes be finalised in as little as four weeks.

Where a divorce is opposed, it can easily take two to three years, or more. In most cases, however, divorces get settled before the parties have to go to Court – even where the divorce started out as an opposed divorce. As soon as the parties in an opposed divorce reach a settlement agreement and the divorce becomes unopposed, it can again be possible to finalise the divorce in as little as four weeks.

My spouse said that he / she won’t ‘give me a divorce’.

What can I do?

Your spouse can oppose the divorce, but it is the Court that grants a divorce, not your spouse. If you convince the court that the marital relationship has irretrievably broken down, the court can grant a decree of divorce even if your spouse does not want to get divorced.

I know divorce can take a long time and in the meantime we cannot agree on arrangements around the kids.

What can I do?

There is a process, called a ‘rule 58’ application, whereby you can ask the court to give an order regarding the care of and access to the children and maintenance pending the finalisation of the divorce. You can even ask for a contribution to your legal costs. For more information about this, click here.

The family advocate will also get involved during the divorce process. This guide will provide more information on this further on.

What if there is domestic abuse?

The courts can assist you in cases of domestic abuse, and the process is the same whether you are busy with divorce proceedings or not. This, however, falls outside of the scope of this guide.

What do I need to have to get a divorce?

Look at the list of documents required on the next page (“Courts”) and start collecting these document as soon as possible.

What if I am in a Civil Union?

The process stays exactly the same as for a ‘normal’ civil marriage, and you can follow the process described in this guide.

What if I am married in terms of a traditional marriage?

This falls outside of the scope of this guide and is addressed elsewhere.

Courts

Before you approach the Court to start divorce proceedings, you should get certified copies of as many of the following documents as you can:

• Your identity document
• Your Ante-Nuptial Agreement, if any
• The children’s births certificates, if any and
• Your marriage certificate

Also make sure you have the following information handy:

• Your full names, surname, identity number, occupation and place of residence
• Your spouse’s full names, surname, identity number, occupation and place of residence
• Date when you got married and where the marriage took place
• Childrens’ full names, surnames, identity numbers and
• Comprehensive details of any funds (such as pension funds, retirement annuities and provident funds) which you or your spouse belong to.

When you have all the information in order, then you can approach the court to start the divorce proceedings.

But which court should you approach?

You may institute divorce proceedings in either a High Court or Magistrates’ Court (Regional Court), but where the parties are representing themselves in a simple divorce, they should approach the Regional Court. This guide also focuses on the process in the Regional Court, and not the High Court. 

To determine which Court specifically you need to approach, you need to find the court that has jurisdiction to hear this matter. A court has jurisdiction in a divorce action if you, your spouse or both of you are:

• domiciled in the area of jurisdiction of the Court on the date on which the action is instituted (meaning the place you consider your permanent home is located inside the area of jurisdiction of the Court) or
• ordinarily resident in the area of jurisdiction of the court on the date the action is instituted and has / have been ordinarily resident in South Africa for a period of not less than one year immediately prior to that date

PRO TIP

It is NOT recommended that you approach any High Court without a legal representative.

To institute legal proceedings in the High Court is more expensive than instituting legal proceedings in the Magistrates’ Court (Regional Court)
A Registrar is a person at the Court that assists with the administration such as the issuing and filling of court documents
You will also have complete a statistics form at the Court
All the forms will be available at Court for you to complete. If you are uncertain how to complete the form then ask the Registrar to assist you. In any event, the Court will have to issue the summons
If you are unsure if your permanent home falls within a Court’s area of jurisdiction, phone the Registrar of that Court to find out

Personal Information

Now that you have considered your options and know which court to approach, you are ready to start the proceedings.

To institute a divorce action, you will use a so-called ‘combined summons’. This consists of a summons and particulars of claim.

Your first step will be to complete the summons on the prescribed form. The Registar has all the forms and will assist you with completing them. The forms and assistance are free and you should report anyone trying to charge you for the forms.

The clauses in your divorce summons must contain certain particulars to be effective and prevent any objection to your divorce summons; the next few pages of this guide will focus in some detail on specific clauses of the particulars of claim. Read through it and make sure you have all the necessary information available when you approach the Registrar to assist you with completing the particulars of claim. You don’t need to type everything out as the Registrar will have fill-in forms available, but you do need to make sure you have all the information with you.

In the divorce summons you have to cite (describe) the parties involved in the divorce proceedings, being yourself (the “Plaintiff”) and your spouse (the “Defendant”).

The first clause in the divorce summons will contain your particulars and the second clause will contain the particulars of the Defendant. These particulars are the first pieces of information to be included in the particulars of claim.

These personal particulars are given in a specific way. You refer to yourself in the third person as “the Plaintiff” and the format in which you will give your particulars are as given below. Everthing between curly brackets should be replaced by your personal details, or one of the choices presented between the brackets:

“The Plaintiff is {Full names & Surname}, ID number: {your identity number}, a major {male / female} {profession}, resident at {address} (hereinafter called the Plaintiff)(see attached identity document marked as Annexure 1 ).”

You will refer to your spouse as “the Defendant” and give his / her particulars in a similar fashion:

“The Defendant is {Full Names & Surname}, ID number: {your spouse’s identity number}, a major {male / female} {profession}, resident at {address} (hereinafter called the Defendant).”

TIP:Ensure that the clauses are completed and in full detail.
Double-check everything – particularly details such as the spelling of names, the ID numbers, etc.

Jurisdiction

After you have completed the clauses relating to the particulars of the Plaintiff and the Defendant, you must complete the third clause, relating to the court’s jurisdiction (or ‘authority’ to hear this specific matter).

In this clause it will have to be established if the Court has jurisdiction to hear the matter. A court has jurisdiction in a divorce action if you, your spouse or both of you are:

• domiciled in the area of jurisdiction of the Dourt on the date on which the action is instituted (meaning the place you consider your permanent home is located inside the area of jurisdiction of the Court); or
• ordinarily resident in the area of jurisdiction of the court on the date the action is instituted and has / have been ordinarily resident in South Africa for a period of not less than one year immediately prior to that date

The clause relating to jurisdiction will look similar to this:

” The above mentioned Honourable Court has jurisdiction in this matter as {both parties/ the Plaintiff/ the Defendant} {is/ are} ordinarily resident in the jurisdiction area of the court and {has /have} been ordinarily resident in the Republic of South Africa for not less than a year at the time of the institution of these proceedings as stipulated in section 2(1) of the Divorce Act, act 70 of 1979.”

Alternatively,

“The above mentioned Honourable Court has jurisdiction in this matter as {both parties/ the Plaintiff/ the Defendant} {is/ are} domiciled within the jurisdiction area of the court as stipulated in terms of section 2(1) of the Divorce Act, act 70 of 1979.”

TIP:It is very important to ensure that the Court that you want to approach is the correct Court.
If you are uncertain then it is suggested that you approach your nearest Court and make certain that you start your divorce proceedings in the correct Court

Marital Regime

After your clause about the jurisdiction you will have the fourth clause, which will refer to the marriage, where and when it was concluded and under which matrimonial property system.

If you got married outside of the Republic of South Africa, different considerations might apply to your case and you need to seek legal guidance from an attorney.

The different matrimonial property systems are described hereunder, but which one is applicable in your case would have already been determined at the time that you got married. Specifically, your ante nuptial agreement, if any, would determine which marital property system is applicable. If you did not enter into an ante nuptial agreement, you are considered to be married in community of property – but read the descriptions below regardless, as there may be special provisions applicable to you due to, for example, the date that you got married.

The first distinction is between a marriage “in community of property” and a marriage “out of community of property”.

With a marriage “in community of property”, you and your spouses assets are basically lumped together into one big pile (the “joint estate”) – which is owned by both of you. This is the ‘default’ marital regime, and the result is that the assets in the joint estate will be divided equally between the two of you when you divorce. There are some assets that might fall outside of the joint estate and belong solely to you or your spouse (for example certain assets that you inherited, gifts or money that a court awarded to you). If you think you might have assets that fall outside of the joint estate, you should see an attorney.

With a marriage “out of community of property” (and excluding the accrual system), your and your spouses assets are seperate and each one owns his or her own estate. You may, however, have opted to get married “out of community of property with accrual”. This is a bit of a hybrid system, where in principle each spouse owns his / her own assets, but any growth in their estates during the marriage is divided equally between the spouses when they get divorced. This means the spouse whose estate grew the most will have to transfer some assets or value to the spouse whose estate grew less. The ante nuptial contract that the spouses would have signed will determine exactly how the assets are dealt with.

If you got married out of community of property and without the accrual system, but you got married before 1 November 1984, you may be able to ask for ‘redistribution of assets’. If you fall within this category, it would be advisable to seek assistance from an attorney.

When completing the form at Court with the assitance of the Registrar, the relevant clause in the summons will look similar to this:

“The parties married {description of marital regime applicable, for example “in community of property”} on {date – including year – on which you got married} at {city where you got married}, and the marriage still subsists.”

TIP: Please take note that on the day of the hearing of the matter in court you will have to bring your original marriage certificate to court. You can attach the original marriage certificate to the summons but you will then always have risk of this certificate getting lost during the proceedings before you go to court.
The ante nuptial agreement will still be valid between you and your spouse if the agreement is duly signed by you and your spouse but not registered at the deeds offices. This will however have the effect that the agreement will then only be enforceable between you and your spouse but not against other third parties such as creditors. If the ante nuptial agreement is successfully registered then it will be enforceable against other parties apart from you and your spouse.

Breakdown of the Marriage

In your next clause, you have to give your reason for seeking a divorce.

There are three grounds on which a court may grant a decree of divorce:

• Continuous unconsciousness of the defendant
• Mental illness of the defendant
• Irretrievable breakdown of the marriage

We will briefly deal with each of these grounds:

Mental illness:
In order for the court to grant a decree of divorce on the ground of mental illness you must prove to the court that:

• The Defendant has been admitted as a mental patient to an institution or is being detained as a State patient at an institution or is being detained as a mentally ill convicted prisoner at an institution
• That he has, for a continuous period of at least two years immediately prior to the institution of the divorce action, not been discharged unconditionally as such a patient, State patient or mentally ill prisoner
• The Court must hear the evidence of at least two psychiatrists, one of whom must have been appointed by the Court. The evidence should be with regard to the mental illness of the Defendant whether the Defendant is mentally ill and whether there is a reasonable prospect that he will be cured of his mental illness

Continuous unconsciousness:

In order for the Court to grant a decree of divorce on the ground of mental illness you must prove to the Court that:

• The Defendant’s unconsciousness has lasted for a continuous period of at least six months immediately prior to the institution of the divorce action
• The Court must hear the evidence of at least two medical practitioners – one of whom must be a neurologist or a neurosurgeon appointed by the Court – with regard to the reasonable prospect whether the Defendant will regain consciousness

Irretrievable breakdown:

The first two grounds for divorce rarely occur and we will therefore focus our attention on the third ground namely irretrievable breakdown of the marriage.

A court may grant a decree of divorce on the ground of the irretrievable breakdown of a marriage if it is satisfied that the marriage relationship between the parties to the marriage has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marital relationship between them.

After stating that the marriage has irretrievably broken down, you may aver any facts to prove to the Court that there has been an irretrievable breakdown of the marriage. The following are common examples for illustrative purposes, but you should state the reasons for the breakdown in your specific marriage, whatever they may be, rather than copy these examples.

• The parties have not lived together as husband and wife for a continuous period of at least one year immediately prior to the date of the institution of the divorce action
• The Defendant has committed adultery and the Plaintiff finds it irreconcilable with a continued marital relationship
• The Defendant has in terms of a sentence of Court been declared a habitual criminal and is undergoing imprisonment as a result of such sentence

In addition to the above you may also prove any other possible reasons for the irretrievable breakdown of the marriage such as emotional, verbal, sexual or physical abuse of yourself or of your children, alcohol or drug abuse, a lack of communication between the parties or the fact that you no longer love the Defendant.

If you asks for an order of forfeiture of benefits against the Defendant, the grounds on which such forfeiture is claimed must be included with the reasons for the irretrievable breakdown of the marriage.

You must remember that you will be expected to give oral evidence in Court regarding the reasons for the breakdown which you have alleged.

If it appears to the Court that there is a reasonable possibility that the parties may become reconciled through marriage counselling, treatment or reflection, the Court may postpone the proceedings in order that the parties may attempt to reconcile.

The paragraph in the particulars of claim dealing with the reasons for the irretrievable breakdown of the marriage may look something like this:

The marriage relationship between the parties has irretrievably broken down to such an extent that no reasonable prospects exist for the restoration of a normal marriage relationship between the parties in that:

1. The Defendant is involved in an extra-marital relationship with another woman who the Plaintiff only knows as “Candy”
2. The Defendant physically and emotionally abuses the Plaintiff
3. The parties have lost all love and respect for each other
4. The parties have not been living together as husband and wife since December 2012;
5. Due to the above the Plaintiff, despite careful consideration, is no longer interested in continuing with the marriage relationship

TIP: South Africa follows a ‘no fault’ system, so you do not need to prove fault on the side of either party, but merely that the marriage has broken down irretrievably.

Minor Children

A “child” is defined by the Children’s Act 38 of 2005 as a person under the age of 18 years. However, all the children born from the parties involved in a divorce matter must be mentioned in the divorce summons and such children will include the biological or adopted children of the parties jointly, whether the children were born or legally adopted before or during the marriage relationship.

If there are no children from the marriage, you will simply indicate on the form that:

“No children were born from the marriage”

If there are in fact children from the marriage (and who are still minors), the divorce summons must comply with and refer to the following sections of the Children’s Act:

• Section 6(5) of the Act ensures that a child who has reached an age of maturity and stage of development as well as a person who has parental responsibilities and rights in respect of the child has been notified of the matters that will significantly affect them
• Section 10 of the Act stipulates that every child who has reached an age of maturity and a stage of development to participate in any matter concerning them by expressing their views which views should be taken into consideration
• Section 18(2) defines parental rights and responsibilities which include the following:
• To care for the child
• To maintain contact with the child
• To act as guardian of the child and
• To contribute to the maintenance of the child: contribution of maintenance will include minor and dependent children over the age of 18 years

TIP: The Court regards the rights of the children of paramount importance; therefore the children’s stability and wellbeing should always be ensured.
Section 6(1) (a) of the Divorce Act 70 of 1979 states that a decree of divorce shall not be granted until the court is satisfied that the welfare of any minor or dependent child of the marriage are satisfactory or are the best that can be effected in the circumstances.

Pension Funds

If you are married in community of property or married out of community of property with the accrual system, then you will have to consider “pension interest.” This is could refer to the spouse’s legal interests in each other’s pension funds, provident funds or retirement annuities.

When you are married out of community of property with the accrual system applicable the pension interest will only apply in the calculation of the accrual. An attorney will be able to assist you with this.

You can either indicate a percentage relating to the pension interest that must be paid out or an amount as long as the amount does not exceed the value of the pension interest.

If you have a pension interest and your spouse is entitled to it, then you should disclose this in your divorce summons. You should include to what the spouse is entitled to and give the full particulars of the fund that the spouse can receive when the divorce order is given. This applies to both parties to the proceedings.

Ensure that you mention the Divorce Act, 70 of 1979 and the Pension Fund Act, 24 of 1956 in the pension clause. Obtain the necessary advice from the Registrar to assist you to complete this clause with reference to the clause in the mentioned Acts applicable. This marital regime will also have an influence on the pension fund interest and the wording of the clause.

If there is a substantial dispute about the pension funds, or if you are uncertain as to what you are entitled to, you should to seek legal counsel before proceeding.

TIP: It is very important that the pension interest clause is drafted very carefully to ensure all the relevant details are inserted in this clause or else the fund will not pay the pension interest to the relevant party. It is advisable that the Registrar or someone with the necessary knowledge assist you in the drafting of this clausIt is recommended that you must always consider the tax implications relating to the money to be received from the respective funds. The current position is that the person receiving the money will have to pay the tax applicable on the amount. It is also wise that this point is discussed with a professional whom can advise you on tax implications andto ensure that if there is a settlement agreement that this point is addressed properly.

Issuing Summons

Once your summons has been drafted, you must attach all the necessary documents (copies of ID documents etc.) and forms (annexure A if applicable). Then you must complete the statistics form that the Registrar will give to you.

After all this is done, the registrar will ‘issue’ the summons. Basically, he / she will open a court file, stamp your summons and assign a case number to your divorce. This process turns your summons into a formal Court document.

TIP: It is a good idea at this stage to make and keep extra photocopies of the bundle.

Service of Summons

Now that your summons have been issued, you need to make at least two sets of photocopies of the entire bundle and have the summons served by the sheriff of the Court.

A sheriff is an officer of the Court. He /she is required to issue and serve the first pleading (divorce summons) in divorce proceedings on your spouse. In divorce actions, he / she has to serve the summons on your spouse in person.

Determine which sheriff needs to serve the summons on your spouse by referring to the area in which your spouse resides. A sheriff has certain service areas and will only serve pleadings in such areas.

A sheriff charges a fee for every time he tries to serve a summons on your spouse. If the summons could not be served, either because the residential address provided is incorrect or because the spouse was not present at the address, the sheriff ‘s return of service will indicate that he was unsuccessful and the reason. If this is the case, you will have to instruct the sheriff again. In the case that the summons was served successfully on your spouse, the sheriff will write a return of service indicating that he served the summons on your spouse in person.

TIP: Ensure that the residential address of your spouse given to the sheriff is correct. This will prevent multiple unsuccessful attempts of service which may lead to higher sheriff’s fees.
If you have reason to believe that your spouse will try to evade the sheriff, it may be useful to provide the sheriff with a photo of your spouse, or a copy of his ID book, if you have it.

Notice of Intention to Defend

After your spouse received your summons, he / she has 10 Court days to serve a Notice of Intention to Defend upon you before you may proceed with an unopposed divorce.

If your spouse does not serve a notice on you indicating that he wishes to defend the action and file the same notice at the Court within the 10 Court days from date that he / she received the divorce summons from the sheriff, then the Court may assume that your spouse does not wish to defend the action. Your spouse’s failure to serve and file the notice will further imply that he / she agrees to the terms set out in your divorce summons and you may ask the Court to grant an order in terms of your prayers included at the end of your divorce summons.

If your spouse does serve a Notice of Intention to Defend upon you, the matter has just become opposed and you need to seek legal counsel as soon as possible.

TIP: If you and your spouse approached the Court together in order to obtain a decree of divorce, you may draft the divorce summons in accordance with both your wishes and once the divorce summons was issued at Court and served by the sheriff, then your spouse may file a notice at the Court indicating that he or she do not defend the divorce action and that he or she agrees to the terms set out in the prayers of your divorce summons.

After this you will enter into a plea and counterclaims.

Mediation or round table meetings can assist you with your settlement agreement that follows.