A divorce is a process in terms of which a civil marriage, a customary marriage, civil union or marriage concluded in terms of religious rights is dissolved by a court of law.
Previously divorces in South Africa were lodged in the High Courts. The High Court’s became overly overburdened and parties normally had to wait a long time for their divorce matter to go on trial especially when their matter was contested.
The backlog in cases was somewhat lessened when the Regional Courts Amendment Act came into effect in 2010 to amend the Magistrate Court Act so as to allow for regional divisions of the Magistrate Courts to also deal with divorce cases. In light of the above divorces can be instituted either in the High Courts or the Regional Courts (also referred to as the Family Courts).
OBTAINING A COPY OF YOUR DIVORCE DECREE
To obtain a copy of your decree, please contact the Registrar of the High Court, where the matter was dealt with. Follow this link for the contact details for the High Courts on the Office of the Chief Justice's website: http://www.judiciary.org.za/index.php/contact-us/regional-court
LEGAL AID SOUTH AFRICA AND DIVORCE
Legal Aid South Africa has a very useaful Self-Help Divorce Guide. 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 doesn’t 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). Follow this link for the "Obtaining a Decree of Divorce" flow chart.
A divorce process is instituted by way of a divorce summons. The Divorce summons can be obtained at the Regional Courts or a party can approach an attorney to assist with the process. A divorce summons is unique in that it must be served personally on the defendant by the sheriff.
A spouse who wishes to have their marriage dissolved must approach the High Court or the Regional Court of the Magistrate Court and have a summons issued. A court has a jurisdiction to hear a divorce matter:
The spouse who starts the divorce proceedings is referred to as the Plaintiff and the other spouse the Defendant. A divorce summons:
The Court Registrar will open a file, stamp the documents and allocate a case number. The documents will then be handed back to the plaintiff. The plaintiff will deliver two sets of these documents to the sheriff in the area where the Defendant works or reside. The sheriff will then serve the documents personally on the defendant and issue a return of service proving that the documents were served.
Where there are children involved, the Office of the Family Advocate must be informed.
After a period of 10 or 20 days has elapsed, the plaintiff may enrol the divorce in the court roll. The defendant must answer the summons by way of a notice of intention to defend the matter. Once that is done, he or she must also file a plea within a specific period. A plea is a statement where the defendant will be responding to the allegations in the summons. After a plea is filed the plaintiff can also reply to the plea or file a notice of set down. The matter will then be enrolled for trial.
TYPES OF DIVORCES
There are two types of divorces:
You can institute divorce on your own by approaching your local Regional Court of the Magistrate Court which will provide the necessary forms and give guidance on how to conclude your divorce.
It is however, advisable to seek the assistance of an attorney with family law experience or to involve a qualified mediator in cases where there are substantial assets, retirement annuities or pension funds as well as children. The attorney will assist with drafting a parenting plan as well as a settlement agreement.
Let's Talk Justice, Season 5, Episode 16: 21 Nov 2019 (Divorce)
Guests: Ms. Peta Josephine: Senior Legal Admin Officer: Office of the Family Advocate (DOJ&CD)
When you say “I do”, getting divorced may be the last thing on your mind. A divorce can be stressful and confusing for couples and families and there is no easy way to get through the legal process or to recover emotionally. Tonight we are discussing Divorce in South Africa.
Let's Talk Justice, Season 5, Episode 05: 29 Aug 2019 (Types of marriages in South Africa)
Guests: Ms. Peta Josephine, Senior Legal Admin Officer, Office of the Family Advocate (DOJ&CD)
As we wrap up Women’s month tonight we will be discussing types of marriages recognized under South African law.
Let's Talk Justice, Season 3, Episode 17: 09 November 2017
Fraudulent Marriages or Marriages of Convenience
Ms Peta Josephine, Senior Legal Admin Officer at the Office of the Family Advocate
Let's Talk Justice, Season 3, Episode 14: 31 October 2017
Recognition of Customary Marriages
Ms Ramothwala Ngwakoana, Estate Controller in the Office of the Chief Master