7 Steps on How to Go About Getting a Divorce in South Africa

7 Steps on How to Go About Getting a Divorce in South Africa

Getting a divorce is never an easy decision, but understanding the process can help make things clearer. First things first, you are not allowed to divorce if your marriage has not irretrievably broken down. This means the court must believe there’s no chance of saving the marriage, whether due to constant fighting, abuse, or infidelity.

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Did You Know?

In South Africa, one of the main causes of divorce that people rarely talk about is emotional neglect or lack of communication. It’s a quiet issue that often leads to deep dissatisfaction in marriages. What’s even more telling is that women file for divorce more often than men, and this is largely overlooked due to societal norms that minimise women’s agency in ending relationships.

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7 Steps to Getting a Divorce

1. Consult a Lawyer The first step is to find a family lawyer or legal aid if you cannot afford private representation. Lawyers guide you through the process, whether it’s an uncontested or contested divorce.
   • Tip: Legal Aid South Africa provides affordable or free services for those who qualify.
2. Discuss Grounds for Divorce South African law requires proof that the marriage has irretrievably broken down. Common grounds include:
   • Adultery
   • Emotional or physical abuse
   • Desertion
   • Incompatibility
3. File for Divorce The process starts when one spouse files for divorce in the appropriate court (Regional or High Court). This includes submitting a summons that explains the intention to dissolve the marriage.
4. Serve the Divorce Papers Once the summons is issued, it must be served to the other spouse by a sheriff. This ensures the spouse is officially notified of the proceedings.
5. Agree on Key Issues The court encourages couples to resolve matters such as:
   • Custody and maintenance of children
   • Division of assets
   • Spousal support
   If the couple agrees, it becomes an uncontested divorce, which is quicker and less expensive.
6. Court Proceedings In contested divorces, both parties will present their cases in court. The judge will consider evidence and testimony before making decisions on disputes.
7. Final Divorce Order Once all matters are resolved, the court will issue a Decree of Divorce. This document legally ends the marriage.

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A Shocking Fact

It’s not surprising to learn that financial strain is a leading cause of divorce, particularly in younger couples. Research shows that unemployment, debt, and lack of financial planning often put enormous pressure on marriages.

According to Statistics South Africa, in 2022, over 54% of divorces involved Black African couples, with many citing economic hardship as a contributing factor.

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FIVE Most Common Divorce Laws in South Africa

When going through a divorce in South Africa, it’s crucial to understand the laws that protect you and your rights. Here are the 5 most common divorce laws and how they apply to your situation:

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1. The Divorce Act, 70 of 1979

This is the main law governing divorce in South Africa. It outlines the legal grounds for divorce, including:

• Irretrievable Breakdown of Marriage: The marriage must be proven to have no chance of recovery.
• Mental Illness or Continuous Unconsciousness: Divorce is allowed if one spouse is permanently incapacitated.

Relevance: This law ensures that divorces are only granted for serious, justifiable reasons, protecting the sanctity of marriage while offering a clear path to dissolution when necessary.

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2. Matrimonial Property Act, 88 of 1984

This law deals with how assets and debts are divided during a divorce, depending on the marital property regime:

• In Community of Property: Assets and debts are split equally.
• Out of Community of Property Without Accrual: Each spouse keeps their assets and debts separate.
• Out of Community of Property With Accrual: Only the growth in wealth during the marriage is shared.

Relevance: It determines who gets what, ensuring fairness based on the financial agreement in place during the marriage.

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3. Maintenance Act, 99 of 1998

This law ensures that spouses and children are financially supported after a divorce. It covers:

• Child Maintenance: The court decides how much each parent must contribute to the child’s needs.
• Spousal Maintenance: If one spouse cannot support themselves post-divorce, the other may be required to pay maintenance.

Relevance: It protects vulnerable spouses and ensures that children’s needs are prioritised.

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4. Children’s Act, 38 of 2005

This law governs custody and guardianship of children during and after divorce. It ensures decisions are made in the best interests of the child, including:

• Primary Residence
• Visitation Rights
• Parental Responsibilities and Rights

Relevance: It safeguards children from being caught in the middle of disputes, ensuring their emotional and physical well-being.

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5. Domestic Violence Act, 116 of 1998

This law provides protection to victims of domestic abuse during and after a divorce. It allows for:

• Protection Orders
• Immediate Removal of the Abuser
• Access to Support Services

Relevance: It protects individuals from continued harm during a highly emotional time, ensuring their safety throughout the divorce process.