How does the divorce process work?

The divorce process in South Africa is a relatively easy process.

Preferably, prior to initiating the divorce proceedings, both parties should agree on the terms of separation, an agreement called a settlement agreement is then entered into between the parties, this step could be mediated by your attorney.

A divorce is initiated by the issuing of a summons, the action can be brought out of either the Regional Court or the High Court with the necessary jurisdiction. Once the summons has been issued at court, the summons will have to be served personally on the other party by way of a sheriff.

One the sheriff has served the summons on the other party (the defendant), the divorce proceedings can proceed one of two ways. The one avenue is where the parties cannot agree on the terms of the separation, this is called a contested or opposed divorce and the other avenue is where the parties are in agreement with each other and enter into a settlement agreement, this is called an uncontested or unopposed divorce.

The uncontested type of divorce is the most cost-effective for all parties concerned and can be finalised in a relatively short timeframe. A contested divorce is a very costly exercise and may take between 2 - 3 years to finalise, however, most divorces settle before trial.

In South Africa, we have various different marital regimes, these regimes determine how the assets (movable and immovable) will be divided between the parties. This is why it is crucial that you consult an attorney prior to marriage.

A divorce decree will be awarded by the courts if one of the parties believes that the marriage has irretrievably broken down and that there are no reasonable prospects of restoring it. This system is called the "no-fault" system, a marriage can consequently be dissolved even if one of the parties to the divorce is desirous to continue with the relationship.

Civil marriages, civil unions and customary marriages can only be dissolved by order of a court, in the absence of a divorce decree the marriage relationship simply continues and the legal implications thereof could be disastrous.

If you require more details on divorce proceedings, please feel free to contact Xander Naudé, from Naude Attorneys and he will assist you with the necessary information - email: xander@naudeattorneys.com