TYPES OF DIVORCES IN SOUTH AFRICA AND WHAT THEY MEAN

It’s one of the hardest things anyone can go through, so knowing the options and the process is important. Here are the basics and helpful links.

Civil marriages in South Africa are dissolved using the Divorce Act. Marriages under African Customary Law go through civil or customary law. This means certain traditions may apply.

Divorce isn’t a decision taken lightly and the court will expect valid reasons for it. You’ll also need the right documents and professional legal help if the settlement will be complicated.

Related article: Divorce: The warning signs

WHO QUALIFIES FOR A DIVORCE?

A divorce can only take place if:
There has been an “irretrievable breakdown”, which means you and your spouse can no longer live together and there’s no chance of reconciliation;
You have not lived together for a while;
One spouse cheated on, abused, or left the other;
Spouses no longer love each other;
Your spouse has been in a mental health facility for at least two years and medical opinion is that they might not recover;
Your spouse has been unconscious for at least six months and medical opinion is they will never recover.

6 TYPES OF DIVORCE

1. UNOPPOSED. This is the quickest and least expensive option. The spouses work together to agree on maintenance, dividing assets, how children will be cared for and so on.

Both spouses can together appoint an attorney to draft the official agreement, which is signed by both and then made an order of the court. This can be done in a few weeks. If they want independent legal advice this is also fine.

2. COLLABORATIVE. Using specially trained collaborative lawyers, the couple agrees they will not go to court but rather work together as a team with lawyers and other professionals such as a social worker, financial planner and child psychologist, to find solutions that work best for the whole family. Once they have reached an agreement, the lawyer or the couple will begin the uncontested legal process to get the divorce granted and the agreement made an order of the court.

3. DEFAULT. This is similar to uncontested and happens if your spouse does not respond to a summons with a date.

4. MEDIATED. Mediators are impartial professionals skilled in helping couples set aside their differences and focus on a settlement. In most cases, mediators are appointed by the attorney or chosen by the couple. Mediated divorces are often finalised in three months.

5. CONTESTED. These can take up to three years (sometimes longer) and happen when spouses can’t agree on terms or dispute the reason for the divorce. Both appear in court several times and the court decides the terms. It can lead to very high legal costs and take three years or longer. In this kind of divorce, if no settlement is reached, the judge will decide on the final terms of the divorce.

The steps

You probably need advice from a lawyer who specialises in divorce or a clerk at a High Court or Divorce Court. You need to know, for instance, how your marriage agreement will influence the process.

Before being granted a divorce, you must prove that you’ve found a solution for:

Who gets custody of the children, as well as visiting rights;
How maintenance (for children or each other) will be paid;
How property and assets will be divided – usually shared equally unless there was a premarital contract.

When you apply for a divorce, you will need to get a summons issued, a document that orders you to be at court. There may also be a divorce settlement attached to the summons.

Applying for divorce starts with visiting a High Court or Family Court, where a clerk will help you with a summons. This states the reasons for the divorce, personal information, details on custody of children and the division of property. It gets issued by the court and is given a case number.

The sheriff will then deliver the summons to your partner. The summons will have a date by which they can say they wish to defend the action.

If your spouse agrees to the terms and does not counterclaim, your divorce will be set down for a date to be heard by the court and you will appear in court.

The plaintiff (the person who institutes the divorce and sends the summons) will appear in court where a judge will ask questions to confirm the information and may end your marriage.

If your spouse disagrees with the terms in the summons, they'll counterclaim and eventually, there will be a trial. If this happened you will both appear in court and may need witnesses.

The judge will listen to both sides and conclude your marriage based on the information.

Related article: What is parallel parenting and how does it work?

6. D.I.Y. DIVORCE
DIY divorces are concluded without the help of an attorney and are thus a far cheaper option.

Your local magistrate’s court can provide you with the forms and give you guidance or you can use an online divorce service to draft your papers and conclude the divorce. All you will need to do is fill in a questionnaire and pay the fees.

If there are minor children or a lot of assets, it will be better to get professional help. Going back to court after a divorce to fix mistakes can be very costly.

Milkwood, a legal consultancy, offers a Conscious Parting service. The couple agrees that they will work together with a lawyer and a social worker to reach an agreement on the terms of their separation with the primary goal of parting consciously and gracefully. Once the couple has agreed on how they will separate then they use an online divorce process to finalise the divorce.

HELPFUL LINKS: