Divorce in South Africa: Frequently Asked Questions
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.
2. 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 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 up to 3 years to finalise as the court system is heavily backlogged and trial dates are usually only available approximately two years from the date on which a trial date is applied for.
3. 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 care of, contact with and maintenance of minor children, spousal 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 regarding how the issues in dispute between the spouses will be resolved.
For more information on the opposed divorce process, visit our previous article which outlines the process.
4. How are assets and liabilities dealt with in consequence of divorce?
The division of assets and liabilities upon divorce depends on several factors, including the matrimonial property regime applicable to the marriage (in community of property, out of community of property with the accrual system, or out of community of property without accrual), the circumstances of the marriage and whether the spouses are able to reach an agreement regarding the division of their estate.
For example, 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 divided is to establish whether an antenuptial contract exists between the parties and what the contract provides. The process involves identifying each party’s assets and liabilities at the time of divorce and dividing them according to the matrimonial property regime governing the marriage.
5. What about arrangements for minor children?
Arrangements relating to the care of, contact with and maintenance of minor children are critical aspects of divorces where 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 reach agreement on matters concerning their minor children, the Court will only make the agreement an order of court once it has been endorsed by the Office of the Family Advocate.
If spouses are unable to reach agreement regarding the children, they may approach the Family Advocate or an independent psychologist to make recommendations regarding what arrangements would be in the best interests of the children.
6. Do I need the assistance of an attorney to get divorced?
While it is not legally required to have an attorney represent you during divorce proceedings, it is strongly recommended. An experienced family law attorney can provide legal guidance, assist with negotiating settlement agreements and ensure that all legal requirements are met so that the divorce can be finalised as efficiently as possible.
Family law attorneys also have experience with the approaches courts typically adopt, which can help ensure the process runs smoothly and that each party receives what they are legally entitled to.
7. What about mediation?
Mediation, as an alternative dispute resolution mechanism, remains a voluntary process, but parties to prospective legal proceedings are now required to consider mediation before instituting litigation and inform the Court whether the matter is capable of being mediated.
Mediation can be a valuable tool and often helps resolve divorce-related disputes in a more amicable, timeous and cost-effective manner.
8. Can I change my surname after 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 your identity document, and complete the required form.
9. What are the costs involved in getting divorced?
The costs associated with divorce vary significantly depending on factors such as whether the divorce is opposed or unopposed and the complexity of the issues involved.
Costs may include attorney’s fees, Sheriff’s fees and the fees of other professionals such as valuators, actuaries, social workers or psychologists where required.
Unopposed divorces are often handled on a fixed fee basis, whereas opposed divorces are usually billed on an hourly basis depending on the amount of work required.
10. 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 a divorce where either spouse:
- is domiciled within the area of the court’s jurisdiction when the divorce summons is issued;
- is ordinarily resident within the area of the court’s jurisdiction when the summons is issued; or
- has been ordinarily resident in South Africa for at least one year prior to the issuing of the summons.
If your spouse lives in another country and is the defendant in the matter, you may need to apply to court for an edictal citation allowing the divorce summons to be served in the foreign country.
Because divorce concerns an individual’s legal status, the court must be satisfied that the summons has been personally served by an authorised court official in that country. After service, the defendant will typically have one month to enter an intention to defend the matter.
Final Thoughts
Divorce can be emotionally challenging and seeking professional guidance is essential. This article 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 is always advisable to consult with an experienced family law attorney who can provide accurate advice based on your situation.
If you would like assistance with divorce or the divorce process, please do not hesitate to contact Dolata & Co. for assistance.