The Divorce Process

The divorce process in a nutshell

We will explain the divorce process by starting at the end-goal and then work through the process in a chronological order.

The end-goal

To get divorced you need a Final Order of Divorce. Only a court can grant this order after considering certain facts that you have to proof. One of most important facts is that the marriage has reached such a state of disintegration that there are no reasonable prospects of the restoration of a normal marriage.

There are many ways to prove that the marriage has reached this point, which will depend on your specific circumstances. Some examples are:

• The parties have not lived together as husband and wife for a continuous period of at least one year;

• The other party committed adultery and you find it irreconcilable to continue with a marriage relationship;

• The parties have gradually drifted apart and no longer share any common interests or goals;

• The parties lead separate lives and no longer act as husband and wife;

• The parties have lost all love, affection, and respect for each other and no longer wish to be married.

 This list is not exhaustive.

A brief outline of the process

The process commences with the summons. The summons is a document that must look a certain way as prescribed by the Rules of Court. Attached to the summons is the “Particulars of Claim”; this is where the necessary statements and averments are made that will need to be proven on the hearing date to convince the Court to grant an Order.

The Clerk of the court will issue a case number (basically the court’s reference number) and opens a file. At this stage the summons has effectively been issued by the court.

The summons must be served on the other party by the Sheriff. There are many Sheriffs in South Africa each working in its own geographical area. You can think of the Sheriff as the “hands of the court” that does all the work that needs to be done outside of the actual court building such as serving documents and executing/enforcing Court Orders (like attachment of assets, auctions etc.).

Once summons has been served on the other party, he/she has 10 working days to defend it. At this point the process splits between two routes, namely contested or uncontested. For purposes of this writing/resource we will focus on the uncontested route. Sufficient to say that contested divorces take longer to finalise and are more expensive.

After the 10 working days have lapsed or if the other party gave notice not to defend, you make take the next step. If minor children are involved the summons must go to the Family Advocate. The Family Advocate is seized with the task of making sure that the well-being of the minor children is taken care of when the family is being split up.

All the documents are paginated, bound, and indexed and then a hearing date can be requested.

On the hearing date you will be required to give testimony to prove the facts contained in the particulars of claim. In certain circumstances the court may allow that you do not have to appear in court and the necessary testimony be given by way of an affidavit. If the court is satisfied a Final Order of Divorce will be granted.

This resource is just a brief explanation to give an overview on how the process is handled. There is a plethora of intricacies that may be involved especially in divorces that are contested. It is encouraged that you consult with a qualified legal practitioner to receive legal advice specific to your circumstances. If your summons is contested or if you seek full advice on your specific circumstances, you are welcome to contact us.