Getting Divorced

After deliberating the options for some time, you and your partner have decided that getting a divorce is the only way forward for your relationship.
Because this is a stressful time for both of you, you’ve decided to work together towards a solution that will lead to the best possible outcome in the shortest amount of time – an uncontested divorce. But what does this really mean?

After Deliberating

In the broadest of terms, divorces are usually either ‘contested’ – the parties involved are having trouble agreeing on a suitable way to divide their assets – or ‘uncontested’, where the terms of the divorce are agreed to beforehand by everyone involved. It is also possible for parties to hire a mediator. Mediated divorces are often done in situations where the parties would prefer, as their first option, to obtain an uncontested divorce, but are uncertain of how to go about dividing their assets and need professional advice.

What do you need for an uncontested divorce?

In some instances, parties start the divorce process thinking that they will be able to obtain an uncontested divorce only for one of the parties to change their mind once the process has started. It is therefore of the utmost importance to be completely sure the following criteria are met before attempting an uncontested divorce:

Have both parties agreed to a divorce?
This does seem a little obvious, but it is still very important to keep in mind that an uncontested divorce is only possible if both parties agree to the divorce. This means that you have to be sure neither party will change their mind half-way through the process.

Have both parties agreed on how to divide their assets?
Not having agreed on how to divide the assets is essentially the definition of a contested divorce. Therefore, it is important that everyone involved take some time to discuss the division of the assets before starting the divorce proceedings.

Have both parties agreed on what will happen to the children?
A divorce is always a little more complicated when there are children involved, but it doesn’t mean that an uncontested divorce is out of the question. If both parties can agree on which parent will act as the primary caregiver, how access to the children will be facilitated, and how maintenance will be paid, proceedings can go ahead unhindered.

Though it is always a good idea to familiarize yourself with the legislation around marriage and divorce, the divorce process in South Africa is reasonably uncomplicated. Divorces can be lodged in the High Courts of South Africa or the Regional Court of the Magistrates Court that has jurisdiction over your area and, in cases where all the necessary documentation has been submitted without problems, the process is finalized within 6 weeks, depending on the availability of the court. On the day an advocate will accompany you to court where you will be asked a few questions by the advocate or judge before your divorce order is granted.

An amicable approach by individuals is encouraged for various reasons, which reasons include:

1. You and your spouse arrive at your own agreements, a Court is not dictating the outcome.
2. The process encourages communication and problem solving.
3. It is considerably less expensive compared to litigating.
4. Matters are resolved quickly.
5. It limits conflict between spouses as the process is amicable, conciliatory and tends to decrease hostility and reduce future conflict.
6. The impact of ongoing litigation on the emotional wellbeing of children is negated.

A good divorce would include the following:

• Being able to parent together.
• Still feeling like a family.
• Not losing friends.
• Not going broke.
• Not becoming a bitter, angry person.
• Not constantly fighting.
• Your children feel stable and secure even with two homes.

A summons is the first official document that will be issued by the relevant court, therefore the document will get a case number. On this document one party will be the Plaintiff and one party will be the Defendant. Although a settlement agreement is reached between the parties, it is still necessary for a summons to be issued in order to open a case at court. The summons will then be served on the Defendant by the Sheriff of the court to ensure that both parties are indeed aware of the divorce proceedings.

The Sheriff is an unbiased official of the Court performing a duty in the interests of justice to all parties. In an uncontested divorce, the Sheriff will serve the issued summons on the Defendant. Although a settlement agreement was reached between the parties, it is still necessary that the summons be served on the Defendant by the relevant Sheriff’s office.

Settlement Agreement: A mutually beneficial settlement agreement is drawn up and signed by the parties. This agreement governs the terms of the separation.

Summons: To start the process a summons will have to be issued at Court and served on the Defendant by the relevant sheriff who has jurisdiction in the matter.

Application for a Court Date: We will apply for a court date, these dates vary from 4 weeks to 6 weeks from date of application.

The hearing: An experienced attorney will accompany one of the parties to court to handle your case at the hearing. A divorce decree will be made an order of the court with incorporating the settlement agreement. 

Even an uncontested divorce can be a costly exercise. It can cost anything from R12000.

At Getting Divorce we give you a professional service with legal representation for only R6500. This includes the fee of the sheriff.