Types of Divorce in South Africa
There are two main types of divorce: uncontested divorce and contested divorce.
An uncontested divorce is where both spouses want to get divorced and both are willing to agree to the terms of the divorce. There must be agreement regarding the division of marital property, the care and contact arrangements in respect of the minor children, and regarding maintenance obligations.
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 often complicated, drawn-out and costly. 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.
Forms of Divorce:
The above-mentioned main types of divorce can take on various forms, which include:
An online divorce, also referred to as an “internet divorce” is a divorce that starts with an online divorce application form. Remember, no matter what type of divorce it is, only a competent court of law can grant a final decree of divorce. You cannot “get divorced on the internet”. Only the initial collection of your information takes place online as well as communications between attorney and client. The actual divorce is finalised by a judge or magistrate in court. Click here to apply for your divorce or click here for more information.
When a spouse/party simply ignores the divorce summons and fails to file any notice to show his/her intention to defend the divorce, that party will be “in default”. The Judge or Magistrate may then grant a default divorce against such party. Click here for more information.
An international divorce in the South African context is a divorce where only one party is domiciled (permanently residing) in South Africa. To use our services one of the parties need to be permanently residing in the Western Cape. We will soon expand our services to other Provinces.
Do-it-yourself (“DIY”) divorces are divorces concluded without the assistance of an attorney. The process usually starts online. The client will only receive the divorce papers, in many cases not drafted by an attorney with written instructions on how to proceed with the next steps in the divorce process. Divorce papers drafted by anyone who is not an attorney could have dire consequences for you and your children. Your divorce papers must be drafted by a qualified attorney, more specifically a divorce attorney, who is up to date with current laws so that your rights and the rights of your children are adequately protected. You will have to attend to all further arrangements at the Sheriff’s office, Court and Family Advocate’s office on your own and you would need to make time to follow up with these institutions. In light of the complexity of the divorce processes, laws and court rules, it is usually advisable to appoint an attorney for assistance in this regard. A DIY divorce can also be done by directly applying at court however, in either circumstance, it is not a good idea to have a DIY divorce if there are substantial assets and debt to divide, like the division of immovable property and retirement funds/annuities, or if there are minor/dependent children involved. In general, your safest bet is to approach a divorce attorney for guidance, whether you consider your divorce “straightforward” or not.
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Nazli Williams, attorney at iedivorce, director at Patton Williams Attorneys and co-author of What You Should Know Before Filing for Divorce (2020 edition) is an admitted attorney of the High Court of South Africa, specialising in Divorce and Family Law matters. Her fields interest include Divorce Law, Family Law, Domestic Violence Law and International Divorce Law. Her vision is to demystify Family Law processes, helping good people in plain language and with great technology, to achieve remarkable results.