Dissolving a marriage isn’t’ as simple as breaking up and going separate ways; it’s a legal process that must be recognised and approved in a court of law.
In South Africa, You can divorce in either the Regional Court of the Magistrate Court having jurisdiction in your area or in the High Court.
When can spouses get a divorce?
There are only two grounds for divorce, namely the:
irretrievable breakdown of the marriage; or
mental illness or continued unconsciousness of one of the spouses.
Examples of the irretrievable breakdown of a marriage as a ground for divorce include:
the spouses not living together for a continuous period of one year;
abuse towards the spouse or the children;
adultery;
habitual criminality;
drunkenness or drug addiction; or
loss of love and affection between the spouses.
Divorce is not based on fault and it is not important who caused the marriage to end.
How can a person apply for a divorce?
Whether you have a contested or uncontested divorce, you will need to follow these steps:
- Visit the High Court or a Family Court in your area.
- Ask a clerk for help with a summons, which will have the reasons for your divorce, personal details, details on custody of children and property.
- You will need to attach a stamp and pay for it.
- You will need to make copies and issue the documents to the clerk.
- He/she will sign it and give a reference number.
- You will need to give the original copies to the sheriff of the court. The clerk can help you find a sheriff.
- The sheriff will deliver the summons to your partner. The summons will have a date by which they can counter-claim.
- If your spouse agrees to the terms and does not counterclaim, your divorce will be added to the high court roll and you will appear in court.
- The plaintiff (the person making the case) will appear in court where a judge will ask questions to confirm information and may end your marriage.
- If your partner, however, disagrees with the terms in the summons, they’ll counterclaim.
- He/she will have to create a document with their defence.
- You will have a trial. Be prepared to provide documents that will be used during the trial.
- You will appear in court and may need witnesses to help your case.
- The judge will listen to both sides and conclude your marriage based on the information they’ve read and heard.
Costs to get a divorce in South Africa
Cost of a divorce varies depending on the circumstances and service providers.
She noted that an uncontested divorce (one in which both parties work together to amicably agree on the divorce terms) can cost anything from R7,000 to R10,000.
However, if the divorce is contested and the spouses cannot agree this goes up exponentially, she said.
“An attorney’s fees start at around R2,000 an hour, an advocate can cost even more, and court hearings also add up depending on how long a case takes to settle.
“Another option is mediation, where an objective third-party individual works with the spouses to temporarily set aside differences to come to a settlement agreement. Mediated and contested divorces can take years to resolve.
“An uncontested divorce can be done in a matter of weeks. This is obviously directly proportional to the expense. How you were married – in community of property (everything is split 50/50) or out of community of property with an antenuptial contract – plays a big role in determining how simple divorce proceedings may, or may not be.”
What will happen to the children upon divorce?
- Arrangements regarding the children born from the marriage, such as with whom the children will stay after the divorce and maintenance, can be agreed upon by both spouses.
- If no agreement can be reached between the spouses, the court will make the decision regarding the children after considering the circumstances of the matter, together with the observation and recommendations by a Family Advocate.
How will the property be divided upon divorce?
- Division of property can be agreed upon by both spouses.
- If no agreement can be reached between the spouses, the property must be divided according to whether the spouses were married in community of property or out of community of property (with or without the accrual system).
- The court has a discretion to divide the property in any manner it deems fit when misconduct can be proven against one of the spouses. For example, if one spouse abused the other spouse and such abuse is the cause of the divorce, the court may decide to divide the property in such a way that the abusing spouse gets less than what s/he would have been entitled to.
Other expenses resulting from a divorce
Aside from the direct costs involved in the divorce proceeding itself, there are many other ‘less obvious’ expenses. These include:
1. Running two households. Setting up a new home brings about all sorts of expenses, from the deposit and rent to rates and taxes, internet installation and furnishings. If you were renting with a former spouse, you also run the risk of losing your deposit when you move out;
2. Taking over your cell phone contracts and other services you may need, which your spouse had been paying for prior to the divorce;
3. Extra childcare or day-care expenses, in certain cases;
4. Setting up your own medical aid and possibly moving your child across to your plan. This can be costly as the price of medical aid is much higher for a primary member than when you were a dependant;
5. Taking out insurance policies, like short-term insurance for your new home;
6. Moving your child to a different school, if you’re moving to a new neighbourhood. This can be extremely expensive if you’ve already paid for a full year at one establishment which may have a policy of refusing refunds if a child is moved. You could effectively end up paying double the fees;
7. Bond registration costs if you’re purchasing property;
8. A life insurance policy, specifically to cover maintenance obligations. Not having this could lead to uncomfortable situations. For example, if your ex passes away, maintenance is a preferential claim on the estate, which means your ex-spouse’s beneficiary may be forced to sell assets in order to free up cash to cover this claim;
9. Consider making changes to your retirement planning, especially if your ex is entitled to half of your pension