Divorce proceedings in South Africa are quite uncomplicated, but financial and emotional costs are quite a serious matter.

To start the divorce process, you must serve a Summons. In addition to being unique, a divorce summons also has to be served personally on the other party by the sheriff of the court.

Generally speaking, there are two types of divorces- the contested or opposed divorce and the uncontested or unopposed. The latter type of divorce is best for all parties concerned and is also the most cost-effective. If a divorce is uncontested, it may be final in 8 weeks. If contested, the divorce may take 2 – 3 years, but most contested divorces do settle before going to trial.

Here in South Africa, depending on whether the couple are married under civil or common law determines how property will be divided after divorce. We have a ‘no fault’ system of divorce which means that the divorce will be granted if one of the parties believes that there has been an ‘irretrievable breakdown of the marriage relationship’ and that there are no reasonable prospects of restoring it. This is why even if one of the spouses does not want to get divorced, a marriage can still be dissolved.

In Australia, a civil marriage, civil union, or those performed by registered marriage officers, may only be dissolved by the order of the court. The party who wishes to end the marriage must sue the other spouse, by providing the court with grounds of breakdown, the lack of reasonable expectation that the marriage can be preserved, and the governing matrimonial property regime of the marriage.

The most ideal solution if you can, is to undertake your divorce in an uncontested manner. A contested divorce is one in which you and your spouse try to agree on the terms of your divorce. Both parties hire the same lawyer, and there is no formal trial. Only the plaintiff appears in court. If a divorce is uncontested, then the couples have made pre-decided on how to divide their assets and on which parent will become the parent of primary residence and which will be the parent of alternate residence. A settlement agreement is then drawn up with the help of an attorney, the parties agree to it, and then the agreement is made an order of the court. An uncontested divorce without legal costs is the cheapest form of divorce.

When one person wants to divorce and the other doesn’t, they might want to try going it alone.

– your divorce is non-contentious;

no, you’re mistaken. Your divorce is not complicated.

• you and your spouse are newlyweds;

you do not have any assets to divide.

• there are no children between them to begin with; and/or
• you are going to do all the administrative work yourself.

The prudent course of action when children are involved or assets exist is to seek the advice of an attorney experienced in family law and retain a qualified third-party mediator so that you may create a detailed settlement agreement and parenting plan. Going back to court after a divorce was granted in order to correct any mistakes made by you or a not-so-knowledgeable legal professional when creating the agreement may cost you.

Through mediation, an independent third party, typically called a mediator, will work with both sides of the conflict to try to reach a settlement, giving legal and/or psychological advice on potential scenarios if the dispute cannot be resolved. A mediator is a go-between who has no say in how the settlement goes, so no one party gets forced to take anything he or she doesn’t want. The process is confidential and not binding, which means no one party can force the other to go along with anything. A mediator will guide both parties in how to best split the joint estate and how to determine the needs of any minor children involved.

Marriages that can’t be dissolved

A consultation with an attorney is essential when a divorce has become a contentious issue. Additionally, consultations with an attorney are important if prior to initiating a divorce it becomes apparent that your spouse will challenge some aspect of the proceedings, such as a legal issue that has to do with the welfare of the children and / or estate proceedings.