Family Law

One party (Plaintiff) needs to issue summons (sue) the other party (Defendant) for a divorce. This is done by combined summons. If you are not represented, you can get the relevant form from the Regional Court in the area you live or work. Otherwise, your attorney will draft this.
An annexure A is required to be completed and signed in front of a commissioner of oaths if you have minor children. A Stats form needs to be completed. These can be completed by either party.
This is then issued by court and served personally on the Defendant by the Sheriff.

If the Divorce is not defended it can take about 8/10 weeks, if it is defended it may take 3 years to get to trial.
Once the Court has heard evidence by the Plaintiff on the date allocated or the trial is complete, the divorce is final and the Divorce Order will be at Court for collection within 2 weeks.

The Sheriff will serve on the address given in the summons during working hours within 2 weeks after they receive the documents, provided they are not told to serve urgently or at another address and the Defendant needs to be present in person to accept.

You need to prove that the marriage has broken down irretrievably and that there is no chance of reconciling. South Africa has a no fault divorce system, so someone does not need to be blamed or do something wrong. Adultery is not a crime in South Africa.

In community of property both parties share in all assets and liabilities equally and the estate id divided equally regardless of who owns more or owes more or who had more before the marriage. This is the default system in South Africa if no contract is entered into before marriage.

Accrual is the sharing of the assets and liabilities accumulated during the marriage. A marriage is subject to accrual if the parties signed an Antenuptial contract (ANC) before they were married. The starting value written in the ANC needs to be adjusted to current money value and deducted off the current estate of each party before the balance is divided. Any property excluded in the ANC is excluded in the Divorce.

Looking to emigrate and take your children from a previous relationship? We can help with the process and give you the information needed.

The Court does not charge you but you need to pay the Sheriff’s fees and pay for copies of the documents.
If you have a lawyer, they will charge you and if an Advocate appears there will be another charge.

You have 10 business days (2 weeks) to enter an appearance to defend if you do not agree with what is being asked for by the other party. You then file a plea saying why you don’t agree and a counterclaim asking for what you want within 20 business days of the appearance to defend.
If you are happy with the terms in the summons, then you do nothing and the divorce will be set down as an unopposed divorce by the other party. You do not need to be in Court as the Defendant.

If both of you agree beforehand on the issues such as property, money and children then you can sign a settlement agreement, with or without a parenting plan and issue summons based on those documents and their terms.

A settlement agreement deals with property, whether movable or immovable, money and pension funds. It is signed by both parties.

If you have children under 18 years old together, this document deals with who the children live with, how often the other parent sees them and when, who pays for the educational and medical and living expenses of the children.

The Family Advocate’s office has to approve all arrangements in respect of children under 18 years old. They look at the summons and settlement agreement or parenting plan and endorse this or if they are concerned, they will request an enquiry. At the enquiry both parents and the children are interviewed and they report on their recommendations.

It can take between 3/8 weeks to get a date after the matter is settled depending on the backlog at the Court and which Court, Regional, or High Court.

No, you can do it all yourself. The best option is to approach the Regional Court at the Magistrate’s Court in the area where you live or work and they will help you.

You can approach the Legal Aid Board, your local University Law Clinic, the law practitioner’s council in your area or probono.org.

A person can dispute the terms of the divorce as far as property and children arrangements but not that the marriage has broken down. The Court will decide if the marriage has broken down and if one of you has asked for a divorce, this is most often a sign.

In the High Court, a Rule 43 application is brought for maintenance for yourself and any children and for arrangements in regard to where children live and how often they see the children and a contribution to your legal costs.

In the Regional court, this is a Rule 58 application.

Alternatively, you can go to the Maintenance Court in the Magistrate’s Court in your area.

The Domestic Violence Court at the Magistrate’s Court in your area will assist with getting protection orders.