What you need to know about divorce
What is divorce?
A divorce is a legal separation of a couple. If you have a civil marriage your divorce will be dissolved using the Divorce Act. Marriages in terms of African Customary Law are ended using civil or customary law. This means that the marriage will be dissolved using the Divorce Act but certain conditions may apply.
Who qualifies for a divorce?
You need a reason to get divorced. In terms of the Divorce Act, a divorce can take place if:
- There has been an “irretrievable breakdown” of the relationship, which means that you and your partner can no longer live together for a continuous period of at least one year prior to the divorce application and there’s no chance of you resolving the matter.
- One partner cheated on the other.
- One partner has been declared a habitual criminal and is undergoing imprisonment as a result of a sentence instructed by a court.
- You can get a divorce if your partner has been in a mental health facility for at least two years and doctors don't think they will ever recover.
- Your partner has been unconscious for at least 6 months and doctors believe they will never recover.
If you meet the criteria above and you and your partner have decided that divorce is the best option, you can follow these easy steps to ensure the process runs as smoothly as possible:
Step 1: Get legal advice
If you're considering a divorce, get help from a lawyer who specialises in divorce or a clerk at a High Court in your area.
There are many rules on divorce. Your marriage agreement may influence your divorce process. For instance, if you're married in community of property, your shared property may be divided equally between you and your partner. For more information you can contact the High Court, NGOs like Nicro, the University of the Western Cape Community Law Centre, the Southern Divorce Court or the Family Law Clinic.
Step 2: Prepare your documents
When applying for a divorce, you will need certified copies of the following documents:
- Your official South African identity document,
- Marriage certificate,
- Your children’s birth certificates (if any),
- Your ante-nuptial agreement (if any),
- The court or law firm assisting with the divorce application will provide any other relevant forms such as the Annexure A Form if you have minor children, and other required documentation, which will differ depending on the nature of your divorce.
The registrar will open a court file, assign a case number to your divorce application, and issue the summons. Once the summons has been issued, you will need to make at least 2 sets of photocopies of your divorce application bundle and have the summons served upon your spouse by the sheriff of the court.
Step 3: Applying for your divorce
There are 2 types of divorce; uncontested/unopposed divorces and contested/opposed divorces. Uncontested divorces are easier because both parties agree to the divorce and the divorce settlement.
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 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.
You can apply for a divorce on your own, without the help of a lawyer, the court clerk can assist you with the application process. There are also several organisations that can help you navigate the process and assist you with legal documents you require.
A default divorce is like an uncontested/unopposed divorce. This works when your partner may not respond at all to the divorce.
- Your partner will receive a summons with a date. The date is a time frame for them to respond.
- If they don't respond, you can apply to the High Court, to add it to the roll.
- The court will decide on his/her behalf and end your marriage.
In the event of a contested divorce or other complicated divorce cases, you will require the help of a lawyer. You can also embark on a process of mediation, where a third party, that has a legal background, helps you and your partner reach an agreement.
Step 4: Recover
During your divorce, you may experience many emotions. You may not experience all of the below mentioned emotions, but get help from a counsellor to help you work through the emotionally-challenging period.
During this stage, you may deny your current reality and pretend to be "fine" or believe that you're "okay". Going through a divorce is a major event, and you're allowed to experience the difficult emotions that come with it. If you feel perfectly fine during this time, it may be an indicator that you're experiencing denial as part of your emotional grieving process.
If you have bottled up your feelings, you'll experience anger. This stage often follows denial as you begin to realise what's happened. You may blame your partner, experience rage, or be angry at yourself.
"If only I could go back and do that differently". These feelings leave you feeling guilty as you may wish you had done things differently. You may also find yourself thinking back to the good times within your marriage and experience great sadness for the fact that things are no longer this way.
This is a dangerous stage and can last for months. You can lose all hope and feel that there's no point to life, and find yourself experiencing a downward mood for most of the day, for a long period of time.
When you accept things, you'll be able to move on. It's important to experience the disappointment to be able to reach a place of acceptance. Should you feel like you are not coping and struggling to find acceptance, it may be beneficial to embark on counselling.
You don't need to get through the challenges of going through a divorce, on your own. There are many organisations and professionals who can help you process this challenging life event. Try Families South Africa (FAMSA). The organisation is an NGO that deals with divorce counselling and provides support for families. You can contact them on 021 447 7951.