iedivorce - Ilizna Esterhuyse Attorneys

General
Divorce Questions

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What are the grounds for divorce?
The Divorce Act of 70 of 1979 introduced 3 grounds for divorce:
  • Irretrievable breakdown of the marriage
  • Continuous unconsciousness of a spouse
  • Mental illness of a spouse
When a marriage relationship is permanently broken down and believed to be beyond repair, it is referred to as an irretrievable breakdown. Marriages may break down for many reasons, not necessarily through misconduct by either of the parties. There are many circumstances that can lead to the permanent breakdown of a marriage. The Divorce Act lists some of these circumstances in Section 4(2):
  • Living apart for more than one year
  • Malicious desertion
  • Alcoholism or drug addiction
  • When one spouse is a habitual criminal
  • Imprisonment
  • Mental illness
  • Adultery
  • Assault, cruelty or domestic violence
 
How many years do you have to be separated to get a divorce?
  While separation (especially if such separation is longer than a year) can indicate that a married couple’s relationship has broken down irretrievably, it is not a requirement for divorce. There are many circumstances that can lead to the permanent breakdown of a marriage, living apart for over a year is just one of them.
What are the procedures for a divorce?

Contested Divorce – The recommended action is to contact a divorce attorney to arrange a consultation. The online divorce process is not recommended.

Uncontested Divorce / Divorce by Agreement – The 4-Step uncontested, online divorce process (managed by an attorney) is the recommended route:

STEP 1:            Complete the divorce application form.

STEP 2:            Pay the deposit.

STEP 3:            Sign the divorce papers.

STEP 4:            Attend at Court (with attorney).

What is an uncontested divorce?
An uncontested divorce is one that is not defended. Where both spouses want a divorce and are willing to agree to the terms thereof, the divorce will also be referred to as being uncontested. If the divorce is by agreement (and therefore uncontested) there must be agreement regarding the division of property, the care and contact arrangements in respect of the children, and regarding maintenance obligations.
What is a contested divorce?
If you and your spouse cannot agree to the terms of the divorce, the contested divorce process will be the only option. A contested divorce is more complicated, drawn-out and costly than an uncontested divorce. In most contested divorces both parties will have attorneys and even Advocates to assist them with the paperwork. After the pleadings and discovery phase (where all the documents are disclosed), the attorney of the Plaintiff will apply for a court date. If no settlement can be reached, pre-trials and the final trial will follow.
What is an online divorce?
An online divorce, also referred to as an “internet divorce” is a divorce that starts with an online divorce application form. It is important to note that the final step will still be in front of a Judge or Magistrate. In attorney-managed online divorces, the divorce attorney will peruse the application form, discuss the contents with the client (via email, telephone call, Skype or in person), draft the necessary documents and guide the client through the specific steps. The divorce attorney will attend to the necessary arrangements at Court, the Sheriff’s offices and the Family Advocate’s offices. After service by the Sheriff, a suitable court date will be arranged.  On court date the divorce attorney or his/her representative or correspondent attorney shall attend with the client to finalise the divorce.
What is an international divorce?
An international divorce in the South African context is a divorce where only one party is domiciled (permanently residing) in South Africa. South African courts will not have the necessary jurisdiction to hear a divorce in the event that both parties are not domiciled or ordinarily resident in South Africa. If the international divorce will definitely be contested, an in person consultation with a divorce attorney is recommended.
Can you refuse to get a divorce?
No spouse can be forced into signing a divorce settlement agreement. When divorce proceedings are instituted on a contested basis (without a settlement agreement), a spouse may give notice of his/her intention to defend the divorce. The standard divorce process shall follow and if the court is satisfied that the married relationship has broken down beyond repair, a divorce order shall be granted. In these circumstances it is advisable to appoint a divorce attorney for assistance.
Do both parties have to agree to get a divorce?
No. If there is no agreement regarding the divorce, one spouse will usually appoint a divorce attorney to start the divorce action by issuing the divorce summons. The Sheriff will serve the divorce papers on the other spouse – he/she will then have the opportunity to defend the divorce if he/she is not in agreement with the prayers in the particulars of claim. The standard contested divorce process shall follow.
Can you get a divorce without your spouse’s consent?
If your spouse is not willing to get divorced, you can get a divorce granted without his or her consent by initiating divorce proceedings. It would be advisable to arrange a consultation with a divorce attorney who will consider the relevant facts, explain your rights and assist with the necessary paperwork. The standard contested divorce process shall follow. If your spouse fails to formally defend the divorce action after service by the Sheriff, the Court may grant the divorce on a default basis without the other spouse’s (further) input.
Can you get a divorce without the other person knowing?
The starting point is that you can only divorce your spouse if he/she knows about it. The reason: to start the divorce process the Sheriff  will have to serve a summons. A divorce summons is unique in that it must be served personally on the Defendant. If, however, the Defendant’s whereabouts are unknown, a special court application will have to be lodged before arranging an alternative method of service. The court may grant an order that the divorce summons will have to be published in a local newspaper in the area where the Defendant was last seen, via email (to the Defendant’s active email address), on a close family member of the Defendant, via Facebook (if Defendant has an active profile) or by any other appropriate method. If there is compliance with the method of service ordered by the court, but the Defendant fails to respond or defend the action, the court may be approached for a divorce on a default basis without the Defendant’s input.
Can you get a divorce online?
An online divorce, also referred to as an “internet divorce” is a divorce that starts with an online divorce application form. It is important to note that the final step will still be in front of a Judge or Magistrate. In attorney-managed online divorces, the divorce attorney will peruse the application form, discuss the contents with the client (via email, telephone call, Skype or in person), draft the necessary documents, attend to the necessary arrangements at Court, the Family Advocate’s offices and the Sheriff’s offices and guide the client through the necessary steps. The divorce attorney or his/her representative will attend (at) Court with the client to finalise the divorce.
What does a divorce mediator do?
Mediation is one of the most frequently used methods of negotiating a divorce settlement. In divorce mediation, both spouses—or, in some cases, both spouses with their divorce attorneys —hire a neutral third party in an effort to discuss and resolve the relevant issues. The mediator does not make decisions, but rather assist and guide the parties to reach agreement regarding the terms of the divorce.
Who gets the pet in a divorce?
If the parties can agree on who will retain the pet(s), this may be recorded in the divorce settlement agreement. If there is no agreement regarding the pets, the Judge/Magistrate will give due consideration to what is in the best interests of the animals, taking into account all relevant factors.
Who will get the engagement ring after divorce?
As an engagement ring is seen as a gift, the giver of the engagement ring will not have a claim for the return of that ring. If, however, both parties agree that the engagement ring must be returned to the giver, the divorce settlement agreement should make provision for this. Click here to read more about this topic.
What if I can’t locate my spouse?
If your spouse’s whereabouts are unknown, a special court application, known as a substituted service application, will have to be lodged. The court may grant an order that the divorce summons will have to be published in a local newspaper in the area where your spouse was last seen, via email, on a family member of your spouse, via Facebook (if your spouse has an active profile) or by any other appropriate method. If there is compliance with the method of service ordered by the court and your spouse fails to respond or defend the divorce action, the court may be approached for a divorce on a default basis without your spouse’s input.
What happens if my spouse and I still live together?
In South Africa separation is not a requirement as proof that the marriage relationship has irretrievably broken down. Separation for longer than a year can be used as a reason for the breakdown of the marriage, but it is not in itself a requirement.
My husband is abusive what can I do to protect myself during the divorce process?
You can approach your nearest Magistrate’s Court for assistance with a domestic violence protection order. It is not a requirement to have an attorney’s assistance for this. The clerk will give you the forms you will have to complete and explain the process.