The divorce process in South Africa is relatively straightforward, yet the financial and emotional consequences can be profound, especially since most divorces are normally lodged in the High Court. The other harsh reality is that the High Courts in South Africa have overly burdened court rolls, and parties normally have to wait a long time for their divorce matter to go to trial when their divorce is contested. The backlog in cases was somewhat lessened when the Regional Courts Amendment Act came into effect in 2010 to amend the Magistrates’ Courts Act, 1944, so as to allow regional divisions of the magistrates’ courts to also deal with divorce cases.
A divorce action is instituted by the issuing of a summons. You can divorce in either the Regional Court of the Magistrate Court having jurisdiction in your area or in the High Court. To start the divorce process you need to serve a Summons. A divorce summons is unique in that it must be served personally on the defendant by the sheriff of the court.
A court has jurisdiction in a divorce action if one or both parties are:
domiciled in the area of jurisdiction of the court on the date on which the action is instituted; or
ordinarily resident in the area of jurisdiction of the court on the said date and has/have been ordinarily resident in South Africa for a period of not less than one year immediately prior to that date.
There are typically two types of divorces, the contested or opposed divorce and the uncontested or unopposed. The latter type of divorce is the best and most cost effective for all parties concerned. An uncontested divorce can be finalized in as little as 4 weeks. If a divorce is contested it may take between 2 - 3 years, but most contested divorces do settle long before they go on trial.
In South Africa, the marital regime of the parties determines how the assets will be divided upon dissolution of the marriage, the assets being those at the time of the divorce. In South Africa, we have a ‘no fault’ system of divorce, meaning that a 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. Therefore, a marriage can be dissolved even if one of the parties does not wish to get divorced.
Civil marriages, civil unions and those religious marriages conducted by registered marriage officers can only be dissolved by order of the court. The spouse wishing to end the marriage must issue a summons against the other spouse, stating that the relationship has broken down, that there is no reasonable prospect of restoring the relationship and which matrimonial property regime governs the marriage. The summons must make provision for the division of the estate, either stating that the parties have entered into a prior agreement or asking the court to divide the joint estate or enforce the provisions of the ANC. Parties must also set out what the arrangements are with regards to any children born or adopted during the marriage.
The best option, if you can make it happen, is to do your divorce in an uncontested manner. An uncontested divorce is one in which you and your spouse work together to agree on the terms of your divorce. You will both consult with the same attorney, who will be unbiased and impartial. There is no formal trial, and only the plaintiff appears in court. In an uncontested divorce, the parties agree prior to the divorce on how to divide their assets and, if there are children involved, which parent will become the parent of primary residence and which will be the parent of alternate residence. A settlement agreement is then drafted with the help of the attorney, entered into (signed) by both parties, and made an order of the court. An uncontested divorce is without a doubt the least expensive type of divorce.
A default divorce is a form of uncontested divorce. A court will grant a divorce by default if you serve a divorce summons on your spouse and he/she does not respond. In a default divorce, the plaintiff prepares a summons setting out his/her claims with or without the help of an attorney. A court issues the summons and a sheriff serves the summons on the defendant. The summons specifies the number of days in which the defendant has to file a notice of intention to defend, i.e. contest the divorce (10 days when the parties live within the jurisdiction of the court or 20 days if they live in different provinces). If the defendant does not answer by way of a notice of defence within the allotted time, the plaintiff may approach the court to enrol the divorce on the court roll and conclude the divorce on the defendant’s default. In such a case, only the plaintiff appears in court.
Some courts do request that a notice of set down (a document stating where and when the divorce will be heard) be served on the defendant personally or by registered post. It may be a good idea to contact your spouse to find out why he/she has not defended. Although you can technically seek a default divorce when the time limit in the summons lapses without the defendant’s response, your spouse could also come back and try to get the divorce set aside by claiming that the delivery was not proper and that there was a good excuse for missing the deadline. It is therefore better to give your spouse every opportunity to respond. You and your spouse may also decide to divorce by default.
DIY divorces are concluded without the help of an attorney, and are thus a far cheaper option. Divorcing without an attorney can be achieved in two ways:
Your local magistrate’s court can provide you with the necessary forms and give you guidance on how to conclude your own divorce without legal representation.
If you don’t want to wait in a queue, you can use an on-line divorce service such as www.idivorce.co.za to draft your divorce papers and conclude your divorce. All you will need to do is fill out a questionnaire and pay the fees.
Doing your own divorce might be an option when:
your divorce is uncontested;
your divorce is not complicated;
you have been married for a short period of time;
you don’t have substantial assets to divide;
there are no disputes regarding any children; and/or
you are prepared to do all the admin yourself.
Usually where children are involved or where there are substantial assets, retirement annuities or pension funds, it is advisable to seek the assistance of an attorney with family law experience or to involve a qualified third-party mediator, so that a comprehensive settlement agreement and parenting plan can be drafted and implemented. Going back to court after a divorce was granted to rectify mistakes made by you or an inexperienced legal practitioner in a settlement agreement can be rather costly.
Regional and family courts do provide free assistance through the clerk of the court to enable members of the public to conclude their divorces without legal representation, but this is a time-consuming process, which amounts to long delays, and so may not always be advisable.
An uncontested divorce can be finalised in four to six weeks depending on the court roll. It is not necessary for both parties to appear together in court, therefore, only the plaintiff will give evidence and conclude the divorce before a magistrate or judge, depending on the court in which the divorce was instituted.
The process of an uncontested divorce is relatively simple. As already mentioned, the parties usually enter into a settlement agreement and parenting plan (when children are involved) prior to the divorce. Once the settlement agreement and parenting plan are signed by both parties and witnesses, the divorce process can commence. Usually, the settlement agreement and parenting plan will be attached to a summons and a particulars-of-claim document. The plaintiff then issues the summons and annexures at court.
The court registrar will open a file, stamp the documents and allocate a case number. The documents will then be handed back to the plaintiff and the plaintiff will deliver two sets of these documents to the sheriff in the area where the defendant resides or work. The sheriff will then serve the documents personally on the defendant and issue a return of service proving that the documents were served.
After a period of 10 days, if the plaintiff and defendant live in the same jurisdiction of the court, or 20 days, if they live in different jurisdictions, the plaintiff may enrol the divorce on the court roll. When there are children involved, the parenting plan must be endorsed by the Office of the Family Advocate prior to the divorce being heard in court. The court will not conclude a divorce without this endorsement. The registrar will then allocate a date and the divorce will be set down on the court roll. The plaintiff must then file a notice of set down for the date and time set by the registrar. The plaintiff will appear personally in court before a judge or magistrate to conclude the divorce on the date set down.
In mediation, an independent third party will work with both sides to try to reach a settlement agreement, and will advise the parties on the various scenarios they could face if the matter goes to court. A mediator acts as a neutral third party, and they usually have a legal and/or psychology background. A mediator does not decide the case and has no authority to make any decision or force any order onto the parties. The decision-making power remains with both spouses and the mediation process is without prejudice. The mediator will guide the parties in making reasonable decisions with regards to such things as the division of the joint estate and the maintenance of minor children.
Once a settlement agreement has been drafted with the help of the mediator, the parties can request their respective attorneys to review it. If there are any aspects pertaining to children in the agreement, the Office of the Family Advocate should also peruse it and provide the court with an opinion on whether the arrangements contained in the agreement are in the best interests of the children. The agreement is then attached to the summons and served on the party that chooses to be the defendant. After expiry of the time period mentioned in the summons, the plaintiff will enrol the case on the court roll and finalise the divorce, incorporating the settlement agreement in the final divorce order.
Mediation will work for you if:
you and your partner agree that you can negotiate in a fair and equitable manner;
children are involved and you would like to draft a parenting plan;
you wish to save money in terms of a contested divorce; and/or
you want your differences to be resolved as soon as possible.
Mediation is a well-established form of dispute resolution and is frequently chosen by couples to resolve as many if not all of their disputes prior to obtaining their divorce. It is effective in terms of both time and money, and allows parties to be directly involved in reaching a settlement that is specifically tailored to their needs. However, mediation requires that both parties want to resolve their differences without resorting to litigation. Mediation can be entered into regardless of whether or not there are children involved. Every aspect of a divorce can be mediated, from the division of assets to the question of maintenance. Parties can agree to mediation before or after legal action has been instituted.
Before entering into mediation, it is advisable for a couple to obtain legal advice so that they know their rights not only in terms of the antenuptial agreement, but also in terms of current legislation such as the Children’s Act. It is difficult to anticipate how many sessions will be required before mediation can be terminated, because it depends on the complexity of the divorce and the couple’s readiness to negotiate. Mediation is currently a voluntary option, but legislation to introduce compulsory mediation is in the pipeline.
The role of the mediator is to manage the negotiations in an impartial manner. A couple may choose to appoint two co-mediators, such as a legal practitioner and a mental-health practitioner, who can each bring their own specific expertise to the mediation. Mediators do not offer advice, whether legal or psychological, and do not represent either party in any way. The mediator should also not have had any previous dealings with either party, whether professional or social. A neutral and skilled mediator aims to provide an environment where emotions frequently experienced by divorcing couples, such as anger, hurt, desperation and fear, can be contained by focusing on what needs to be resolved rather than exploring the reasons for the break-up of the marriage. It is sometimes appropriate for a couple contemplating divorce or separation to seek psychological or therapeutic assistance to deal with the psychological aspects of divorce or separation while at the same time entering into mediation.
There are some instances where mediation is unlikely to be effective, such as where there is a significant power imbalance between the parties, where there are serious allegations of substance abuse or where mental health is being called into question. In the event that mediation fails, information provided to the mediator during mediation may not be disclosed later at a trial. Because mediation is a voluntary process, it can be terminated at any stage by either party or by the mediator if they are of the opinion that the process is no longer productive or serving their needs.
Mediation is currently an unregulated profession. Organisations such as the Family Mediators’ Association in the Cape (FAMAC) in Cape Town, the South African Association of Mediators (SAAM) in Gauteng and the KZN Association of Family Mediators (KAFam) in KwaZulu Natal train and accredit mediators. Their websites provide names of accredited mediators as well as useful information regarding mediation. The National Accreditation Board for Family Mediators (NABFAM) has recently been established. One of its chief functions is the standardisation of training and accreditation of mediators in South Africa.
A round table settlement is usually accomplished soon after the summons is served in a contested divorce. Both parties’ legal representatives informally exchange their clients’ financial information and then meet on a convenient date with the parties present to settle the divorce. A settlement agreement is then drafted, and only the plaintiff appears in court to get the settlement agreement made an order of court.
Both you and your partner are entitled to obtain legal representation. At any stage, including before any legal action is instituted and even until a trial has commenced, you and your partner can, together with your respective legal representatives, meet and enter into negotiations. These negotiations are often referred to as roundtable settlement negotiations, and the details of these negotiations may not be disclosed at the trial if it should go ahead.
If you and your partner manage to reach an agreement at any stage, you can also agree whether to have the agreement made an order of court and which party will approach the court to do so. If children are involved, the Office of the Family Advocate will have to peruse your agreement to provide the High Court with an opinion of whether they believe the arrangements you and your partner have agreed to are in the best interests of the children.
Although not yet practised in South Africa, collaborative law will play a huge part in our family law in the foreseeable future. Collaborative law is different from mediation. In mediation, a neutral mediator assists the parties in reaching a resolution. In collaborative law, each client’s legal representative is present during the negotiations to provide support and legal advice and to manage the process. Legal advice is therefore concurrent with and integrated into the negotiations.
The adversarial court system in South Africa is often not suitable for resolving family law disputes. In court, legal representatives are constrained by the principles and rules of law, which are often not well suited to a client’s particular situation and his/her needs. The problem is that the legal community as a whole – our laws, courts, court rules and legal institutions – values and rewards ‘victory’ at any cost, making it difficult to focus on the post-divorce needs of clients. Despite intentions to the contrary, a court-sanctioned outcome is very seldom a good fit for families. The issues at stake are way too personal and require a high level of detail that the overburdened court system is not able to provide. Collaborative law is a ‘one-idea’ or ‘one-rule’ process: there is a contractual requirement that the collaborative attorney and all members of his/her team withdraw if the matter becomes contested. Clients must retain new counsel if they decide to terminate the process and litigate. It is substantively different to be contractually bound to non-litigious resolution than to negotiate ‘nicely’ with the threat of court still available.
The collaborative divorce process plays out in a series of ‘all party’ meetings with the clients and their collaborative lawyers present. Negotiations are conducted in a principled fashion, exploring interest rather than discussing positions, so that all participants form a team with a common goal: to concentrate all efforts towards reaching a settlement that is acceptable to both parties. As a team, they are less likely to give up; impasse becomes a challenge rather than an opportunity to assign blame; and successful negotiations are much more likely. The team approach also provides the opportunity for the lawyers to discuss the legal context and its application to the clients and to assist in brainstorming options for resolving of the issues. Collaborative law is a shift from ‘warrior’ to ‘facilitator’.