Divorce

This guide is designed to assist you in obtaining a decree of divorce in a Regional Court in South Africa. It gives general information only and doesn’t take the place of legal advice. Obviously, it also cannot provide specific advice about your divorce only a lawyer can do that (and help you to protect all of your rights).

Use of this guide for self-help should be limited to uncontested divorces where there are no contentious or complicated issues regarding the children, division of the property (or debts), maintenance or pension. In any case where a divorce is or becomes contested or any complications arise (particularly with regard to any of the above), it may be best to have a lawyer represent you in your divorce. Where this guide goes beyond the scope of the uncontested, simple and uncontentious divorce, it is merely to provide you with information and understanding as to the general process and what steps your attorney is likely to take and should not be used to attempt to do these things without legal assistance – much like you would not operate on your own body from a book but might want to understand what is going to happen.

Before you get into preparing the summons and sending it off to start the process, let us first address some preliminary questions:

How much does it cost to get a divorce?

In the case of an unopposed divorce (ie there is no dispute between yourself and your spouse about the divorce or what should happen), your fees are likely to be limited to the Sheriff’s fees and minor expenses for transport, photocopies, etc. Sheriff’s fees can vary widely, depending on the distance he has to travel and how many attempts he has to make at serving pleadings on the opposing party, but generally these fees would be a few hundred rand. It is a good idea to contact the Sheriff and ask him for an estimate before asking him to serve pleadings.

Where a divorce is opposed, the costs become unpredictable and entirely dependant on the specifics of the case, but it can get very expensive very quickly.

What can I do if I need an attorney and I cannot afford one?

If you find that you do need legal assistance, but you cannot afford an attorney, you might qualify for legal aid. You can approach Legal Aid South Africa, your local University Law Clinic or your nearest Law Society to enquire about your situation and the availability and your eligibility for legal aid.

You can also approach the court and ask for an order compelling your spouse to contribute to your legal costs. You do this by way of a so-called ‘rule 58’ application, discussed in more detail here.

How long does it take to get divorced?

Where a divorce is unopposed and there are no complications or children involved, it can sometimes be finalised in as little as four weeks.

Where a divorce is opposed, it can easily take two to three years, or more. In most cases, however, divorces get settled before the parties have to go to Court – even where the divorce started out as an opposed divorce. As soon as the parties in an opposed divorce reach a settlement agreement and the divorce becomes unopposed, it can again be possible to finalise the divorce in as little as four weeks.

My spouse said that he / she won’t ‘give me a divorce’. What can I do?

Your spouse can oppose the divorce, but it is the Court that grants a divorce, not your spouse. If you convince the court that the marital relationship has irretrievably broken down, the court can grant a decree of divorce even if your spouse does not want to get divorced.

I know divorce can take a long time and in the meantime we cannot agree on arrangements around the kids. What can I do?

There is a process, called a ‘rule 58’ application, whereby you can ask the court to give an order regarding the care of and access to the children and maintenance pending the finalisation of the divorce. You can even ask for a contribution to your legal costs. For more information about this, click here.

The family advocate will also get involved during the divorce process. This guide will provide more information on this further on.

What if there is domestic abuse?

The courts can assist you in cases of domestic abuse, and the process is the same whether you are busy with divorce proceedings or not. This, however, falls outside of the scope of this guide. For more information, click here.

What do I need to have to get a divorce?

Look at the list of documents required on the next page (“Courts”) and start collecting these document as soon as possible.

What if I am in a Civil Union?

The process stays exactly the same as for a ‘normal’ civil marriage, and you can follow the process described in this guide.

What if I am married in terms of a traditional marriage?

This falls outside of the scope of this guide and is addressed elsewhere. For more information, click here.

TIP: If you no longer have your marriage certificate, you can obtain a copy at your nearest Home Affairs office for a small fee.

Before you approach the Court to start divorce proceedings, you will should get certified copies of as many of the following documents as you can:

  • Your identity document
  • Your Ante-Nuptial Agreement, if any
  • The children’s births certificates, if any and
  • Your marriage certificate

Also make sure you have the following information handy:

  • Your full names, surname, identity number, occupation and place of residence
  • Your spouse’s full names, surname, identity number, occupation and place of residence
  • Date when you got married and where the marriage took place
  • Childrens’ full names, surnames, identity numbers and
  • Comprehensive details of any funds (such as pension funds, retirement annuities and provident funds) which you or your spouse belongs to.
    When you have all the information in order then you can approach the court to start the divorce proceedings. But which court should you approach?

You may institute divorce proceedings in either a High Court or Magistrates’ Court (Regional Court), but where the parties are representing themselves in a simple divorce, they should approach the Regional Court. This guide also focuses on the process in the Regional Court, and not the High Court. Follow this link for a list with contact details for the various lower courts (including the Regional Courts).

To determine which Court specifically you need to approach, you need to find the court that has jurisdiction to hear this matter. A court has jurisdiction in a divorce action if you, your spouse or both of you are:

  • domiciled in the area of jurisdiction of the Court on the date on which the action is instituted (meaning the place you consider your permanent home is located inside the area of jurisdiction of the Court) or
  • ordinarily resident in the area of jurisdiction of the court on the date the action is instituted and has / have been ordinarily resident in South Africa for a period of not less than one year immediately prior to that date

TIP: It is NOT recommended that you approach any High Court without a legal representative.
To institute legal proceedings in the High Court is more expensive than instituting legal proceedings in the Magistrates’ Court (Regional Court).
A Registrar is a person at the Court that assists with the administration such as the issuing and filling of court documents.
You will also have complete a statistics form at the Court.
All the forms will be available at Court for you to complete. If you are uncertain how to complete the form then ask the Registrar to assist you. In any event, the Court will have to issue the summons.
If you are unsure if your permanent home falls within a Court’s area of jurisdiction, phone the Registrar of that Court to find out.

Now that you have considered your options and know which court to approach, you are ready to start the proceedings.

To institute a divorce action, you will use a so-called ‘combined summons’. This consists of a summons and particulars of claim.

Your first step will be to complete the summons on the prescribed form. The Registar has all the forms and will assist you with completing them. The forms and assistance are free and you should report anyone trying to charge you for the forms.

The clauses in your divorce summons must contain certain particulars to be effective and prevent any objection to your divorce summons; the next few pages of this guide will focus in some detail on specific clauses of the particulars of claim. Read through it and make sure you have all the necessary information available when you approach the Registrar to assist you with completing the particulars of claim. You don’t need to type everything out as the Registrar will have fill-in forms available, but you do need to make sure you have all the information with you.

In the divorce summons you have to cite (describe) the parties involved in the divorce proceedings, being yourself (the “Plaintiff”) and your spouse (the “Defendant”).

The first clause in the divorce summons will contain your particulars and the second clause will contain the particulars of the Defendant. These particulars are the first pieces of information to be included in the particulars of claim.

These personal particulars are given in a specific way. You refer to yourself in the third person as “the Plaintiff” and the format in which you will give your particulars are as given below. Everthing between curly brackets should be replaced by your personal details, or one of the choices presented between the brackets:

“The Plaintiff is {Full names & Surname}, ID number: {your identity number}, a major {male / female} {profession}, resident at {address} (hereinafter called the Plaintiff)(see attached identity document marked as Annexure 1 ).”

You will refer to your spouse as “the Defendant” and give his / her particulars in a similar fashion:

“The Defendant is {Full Names & Surname}, ID number: {your spouse’s identity number}, a major {male / female} {profession}, resident at {address} (hereinafter called the Defendant).”

TIP:Ensure that the clauses are completed and in full detail.
Double-check everything – particularly details such as the spelling of names, the ID numbers, etc.

After you have completed the clauses relating to the particulars of the Plaintiff and the Defendant, you must complete the third clause, relating to the court’s jurisdiction (or ‘authority’ to hear this specific matter).

In this clause it will have to be established if the Court has jurisdiction to hear the matter. A court has jurisdiction in a divorce action if you, your spouse or both of you are:

  • domiciled in the area of jurisdiction of the Dourt on the date on which the action is instituted (meaning the place you consider your permanent home is located inside the area of jurisdiction of the Court); or
  • ordinarily resident in the area of jurisdiction of the court on the date the action is instituted and has / have been ordinarily resident in South Africa for a period of not less than one year immediately prior to that date

The clause relating to jurisdiction will look similar to this:

” The above mentioned Honourable Court has jurisdiction in this matter as {both parties/ the Plaintiff/ the Defendant} {is/ are} ordinarily resident in the jurisdiction area of the court and {has /have} been ordinarily resident in the Republic of South Africa for not less than a year at the time of the institution of these proceedings as stipulated in section 2(1) of the Divorce Act, act 70 of 1979.”

Alternatively,

“The above mentioned Honourable Court has jurisdiction in this matter as {both parties/ the Plaintiff/ the Defendant} {is/ are} domiciled within the jurisdiction area of the court as stipulated in terms of section 2(1) of the Divorce Act, act 70 of 1979.”

TIP:It is very important to ensure that the Court that you want to approach is the correct Court.
If you are uncertain then it is suggested that you approach your nearest Court and make certain that you start your divorce proceedings in the correct Court

After your clause about the jurisdiction you will have the fourth clause, which will refer to the marriage, where and when it was concluded and under which matrimonial property system.

If you got married outside of the Republic of South Africa, different considerations might apply to your case and you need to seek legal guidance from an attorney.

The different matrimonial property systems are described hereunder, but which one is applicable in your case would have already been determined at the time that you got married. Specifically, your ante nuptial agreement, if any, would determine which marital property system is applicable. If you did not enter into an ante nuptial agreement, you are considered to be married in community of property – but read the descriptions below regardless, as there may be special provisions applicable to you due to, for example, the date that you got married.

The first distinction is between a marriage “in community of property” and a marriage “out of community of property”.

With a marriage “in community of property”, you and your spouses assets are basically lumped together into one big pile (the “joint estate”) – which is owned by both of you. This is the ‘default’ marital regime, and the result is that the assets in the joint estate will be divided equally between the two of you when you divorce. There are some assets that might fall outside of the joint estate and belong solely to you or your spouse (for example certain assets that you inherited, gifts or money that a court awarded to you). If you think you might have assets that fall outside of the joint estate, you should see an attorney.

With a marriage “out of community of property” (and excluding the accrual system), your and your spouses assets are seperate and each one owns his or her own estate. You may, however, have opted to get married “out of community of property with accrual”. This is a bit of a hybrid system, where in principle each spouse owns his / her own assets, but any growth in their estates during the marriage is divided equally between the spouses when they get divorced. This means the spouse whose estate grew the most will have to transfer some assets or value to the spouse whose estate grew less. The ante nuptial contract that the spouses would have signed will determine exactly how the assets are dealt with.

If you got married out of community of property and without the accrual system, but you got married before 1 November 1984, you may be able to ask for ‘redistribution of assets’. If you fall within this category, it would be advisable to seek assistance from an attorney.

When completing the form at Court with the assitance of the Registrar, the relevant clause in the summons will look similar to this:

“The parties married {description of marital regime applicable, for example “in community of property”} on {date – including year – on which you got married} at {city where you got married}, and the marriage still subsists.”

TIP: Please take note that on the day of the hearing of the matter in court you will have to bring your original marriage certificate to court. You can attach the original marriage certificate to the summons but you will then always have risk of this certificate getting lost during the proceedings before you go to court.
The ante nuptial agreement will still be valid between you and your spouse if the agreement is duly signed by you and your spouse but not registered at the deeds offices. This will however have the effect that the agreement will then only be enforceable between you and your spouse but not against other third parties such as creditors. If the ante nuptial agreement is successfully registered then it will be enforceable against other parties apart from you and your spouse.

In your next clause, you have to give your reason for seeking a divorce.

There are three grounds on which a court may grant a decree of divorce:

  • Continuous unconsciousness of the defendant
  • Mental illness of the defendant
  • Irretrievable breakdown of the marriage

We will briefly deal with each of these grounds:

Mental illness:
In order for the court to grant a decree of divorce on the ground of mental illness you must prove to the court that:

  • The Defendant has been admitted as a mental patient to an institution or is being detained as a State patient at an institution or is being detained as a mentally ill convicted prisoner at an institution
  • That he has, for a continuous period of at least two years immediately prior to the institution of the divorce action, not been discharged unconditionally as such a patient, State patient or mentally ill prisoner
  • The Court must hear the evidence of at least two psychiatrists, one of whom must have been appointed by the Court. The evidence should be with regard to the mental illness of the Defendant whether the Defendant is mentally ill and whether there is a reasonable prospect that he will be cured of his mental illness

Continuous unconsciousness:
In order for the Court to grant a decree of divorce on the ground of mental illness you must prove to the Court that:

  • The Defendant’s unconsciousness has lasted for a continuous period of at least six months immediately prior to the institution of the divorce action
  • The Court must hear the evidence of at least two medical practitioners – one of whom must be a neurologist or a neurosurgeon appointed by the Court – with regard to the reasonable prospect whether the Defendant will regain consciousness

Irretrievable breakdown:
The first two grounds for divorce rarely occur and we will therefore focus our attention on the third ground namely irretrievable breakdown of the marriage.

A court may grant a decree of divorce on the ground of the irretrievable breakdown of a marriage if it is satisfied that the marriage relationship between the parties to the marriage has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marital relationship between them.

After stating that the marriage has irretrievably broken down, you may aver any facts to prove to the Court that there has been an irretrievable breakdown of the marriage. The following are common examples for illustrative purposes, but you should state the reasons for the breakdown in your specific marriage, whatever they may be, rather than copy these examples.

  • The parties have not lived together as husband and wife for a continuous period of at least one year immediately prior to the date of the institution of the divorce action
  • The Defendant has committed adultery and the Plaintiff finds it irreconcilable with a continued marital relationship
  • The Defendant has in terms of a sentence of Court been declared a habitual criminal and is undergoing imprisonment as a result of such sentence

In addition to the above you may also prove any other possible reasons for the irretrievable breakdown of the marriage such as emotional, verbal, sexual or physical abuse of yourself or of your children, alcohol or drug abuse, a lack of communication between the parties or the fact that you no longer love the Defendant.

If you asks for an order of forfeiture of benefits against the Defendant, the grounds on which such forfeiture is claimed must be included with the reasons for the irretrievable breakdown of the marriage.

You must remember that you will be expected to give oral evidence in Court regarding the reasons for the breakdown which you have alleged.

If it appears to the Court that there is a reasonable possibility that the parties may become reconciled through marriage counselling, treatment or reflection, the Court may postpone the proceedings in order that the parties may attempt to reconcile.

The paragraph in the particulars of claim dealing with the reasons for the irretrievable breakdown of the marriage may look something like this:

The marriage relationship between the parties has irretrievably broken down to such an extent that no reasonable prospects exist for the restoration of a normal marriage relationship between the parties in that:

  1. The Defendant is involved in an extra-marital relationship with another woman who the Plaintiff only knows as “Candy”
  2. The Defendant physically and emotionally abuses the Plaintiff
  3. The parties have lost all love and respect for each other
  4. The parties have not been living together as husband and wife since December 2012;
  1. Due to the above the Plaintiff, despite careful consideration, is no longer interested in continuing with the marriage relationship

TIP: South Africa follows a ‘no fault’ system, so you do not need to prove fault on the side of either party, but merely that the marriage has broken down irretrievably.

A “child” is defined by the Children’s Act 38 of 2005 as a person under the age of 18 years. However, all the children born from the parties involved in a divorce matter must be mentioned in the divorce summons and such children will include the biological or adopted children of the parties jointly, whether the children were born or legally adopted before or during the marriage relationship.

If there are no children from the marriage, you will simply indicate on the form that:

“No children were born from the marriage”

If there are in fact children from the marriage (and who are still minors), the divorce summons must comply with and refer to the following sections of the Children’s Act:

  • Section 6(5) of the Act ensures that a child who has reached an age of maturity and stage of development as well as a person who has parental responsibilities and rights in respect of the child has been notified of the matters that will significantly affect them
  • Section 10 of the Act stipulates that every child who has reached an age of maturity and a stage of development to participate in any matter concerning them by expressing their views which views should be taken into consideration
  • Section 18(2) defines parental rights and responsibilities which include the following:
  • To care for the child
  • To maintain contact with the child
  • To act as guardian of the child and
  • To contribute to the maintenance of the child: contribution of maintenance will include minor and dependent children over the age of 18 years

TIP: The Court regards the rights of the children of paramount importance; therefore the children’s stability and wellbeing should always be ensured.
Section 6(1) (a) of the Divorce Act 70 of 1979 states that a decree of divorce shall not be granted until the court is satisfied that the welfare of any minor or dependent child of the marriage are satisfactory or are the best that can be effected in the circumstances.

Family Advocate, Annexure A & Annexure B

You have indicated that there are in fact children ‘born from’ the marriage.

This means that specific averments will have to be made regarding the children and must be approved of by the Court. To this end, the Family Advocate’s offices assist the court in matters where children are involved.

In all divorce matters where minor children are involved, you will have to complete a so-called “Annexure A” form. This form mainly deals with the arrangements that has been made regarding the children and takes the form of an affidavit (so you will have to sign and affirm the contents, under oath, in front of a commissioner of oaths – such as a police officer). You must then attach this form to the summons. The Family Advocate will eventually have to stamp this form to indicate that their offices have perused the contents and are satisfied that the interest of the children have been sufficiently safeguarded.

Annexure B is also a form, but is not attached to the summons. It is only used in cases where there is a dispute regarding the minor children (for example, the parties cannot agree on where the children must stay). Once this becomes necessary, you are again in territory where you are most strongly advised to NOT proceed on your own, but to seek legal counsel.

Where an annexure B is completed, the Family Advocate’s offices will conduct an investigation. Such investigation will normally include interviews with both parents and, depending on their age and maturity, also with the children. This investigation is conducted with the purpose to file a report at the Court which report contains recommendations regarding the care, primary residency and contact with the children.

Forms

TIP: The Court regards the rights of the children of paramount importance; therefore the children’s stability and wellbeing should always be ensured.
Section 6(1) (a) of the Divorce Act 70 of 1979 states that a decree of divorce shall not be granted until the court is satisfied that the welfare of any minor or dependent child of the marriage are satisfactory or are the best that can be effected in the circumstances.
The Family Advocate’s offices will not be able to conduct an investigation into the circumstances of the “children” if they are older than 18 (eighteen) years – as they are then, legally, considered adults.
The Family Advocate is a neutral institution which cannot act as the legal representative for either party in any matter.
The Family Advocate’s offices afford the children of the parties the opportunity to voice their views on their parents’ pending divorce.

It is important that you give serious consideration to claiming maintenance. If you do not claim maintenance for yourself at this stage, you will never be able to claim maintenance in future. This is only true between the spouses; children would be able to claim maintenance even after the divorce.

You may claim maintenance for a minor child or (in some cases) a major child – if the major child is not yet self-supportive. The basis of maintenance for children is the children’s needs and both parents’ means.

The arrangements made for maintenance are basically the same as you would have to make for a normal claim for maintenance in the maintenance court, and is therefore not repeated here.

TIP: Start collecting receipts and proof of incomes and expenditure as soon as possible

If you are married in community of property or married out of community of property with the accrual system, then you will have to consider “pension interest.” This is could refer to the spouse’s legal interests in each other’s pension funds, provident funds or retirement annuities.

When you are married out of community of property with the accrual system applicable the pension interest will only apply in the calculation of the accrual. An attorney will be able to assist you with this.

You can either indicate a percentage relating to the pension interest that must be paid out or an amount as long as the amount does not exceed the value of the pension interest.

If you have a pension interest and your spouse is entitled to it, then you should disclose this in your divorce summons. You should include to what the spouse is entitled to and give the full particulars of the fund that the spouse can receive when the divorce order is given. This applies to both parties to the proceedings.

Ensure that you mention the Divorce Act, 70 of 1979 and the Pension Fund Act, 24 of 1956 in the pension clause. Obtain the necessary advice from the Registrar to assist you to complete this clause with reference to the clause in the mentioned Acts applicable. This marital regime will also have an influence on the pension fund interest and the wording of the clause.

If there is a substantial dispute about the pension funds, or if you are uncertain as to what you are entitled to, you should to seek legal counsel before proceeding.

TIP: It is very important that the pension interest clause is drafted very carefully to ensure all the relevant details are inserted in this clause or else the fund will not pay the pension interest to the relevant party. It is advisable that the Registrar or someone with the necessary knowledge assist you in the drafting of this clausIt is recommended that you must always consider the tax implications relating to the money to be received from the respective funds. The current position is that the person receiving the money will have to pay the tax applicable on the amount. It is also wise that this point is discussed with a professional whom can advise you on tax implications andto ensure that if there is a settlement agreement that this point is addressed properly.

The prayers are that part of the particulars of claim in which you will ask the court what you want. It is important that each prayer (something you ask the court to grant) must link up with the averments which you made in the particulars of claim. In other words there may not be a prayer if you have not already laid a basis for that prayer in the particulars of claim.

The prayers must be specific enough not to cause confusion or to make enforcement thereof difficult or impossible. An example is if you are asking for maintenance, your prayer must also indicate when, where and how payment will be made.

This is of particular importance when asking for a share in the Defendant’s pension interest: The name of the pension fund, who administer the fund, the pension number of the Defendant and what amount or percentage of the pension interest you are entitled to must be specifically included, otherwise the pension fund will refuse to pay out your share of the pension interest.

Another prayer in which detail will be important is the prayer regarding the contact with minor children. Here it must be clear who will have contact with the children and when this contact will take place. It is also helpful if the prayers make it clear who is responsible for getting the children to a specific location  or who will pick them up from a specific location.  The specific sections of the Children’s Act must also be mentioned, as in the example provided below.

Here follows an example of how your prayers might look.Obviously not all of the prayers will be applicable to your specific situation and therefore we have included an explanation in brackets of when that specific prayer will be applicable. The part in brackets will naturally not appear in your prayers.

WHEREFORE PLAINTIFF PRAYS FOR:

1. A decree of divorce; (Prayer for divorce)

2. An order in terms whereof the Defendant pays maintenance, in respect of the minor child, to the Plaintiff in the amount of R 1 000.00 (One Thousand Rand) per month.  The first payment of maintenance will take place by way of electronic transfer into the Plaintiff’s bank account on the first day of the month which follows the month in which this decree of divorce is granted; (Prayer for maintenance in respect of the minor child)

3. An order in terms whereof: (Prayer with regard to parental rights and responsibilities)

3.1 The parental responsibilities and rights with regard to the care of the minor child, as contemplated in Section 18(2)(a) of the Children’s Act, 38 of 2005, be awarded to the parties jointly

3.2 The permanent residency of the minor child be awarded to the Plaintiff

3.3 Specific parental responsibilities and rights with regard to contact with the minor child, as contemplated in Section 18(2)(b) of the Children’s Act, 38 of 2005, be awarded to the Defendant as follows:

3.3.1 The minor child will spend every second weekend from Friday afternoon at 14:00 to Sunday afternoon at 18:00 with the Defendant.  The Defendant will collect the minor child from the Plaintiff’s house and return the minor child after the contact visit

3.3.2 The minor child will spend the Defendant’s birthday with the Defendant.  The Defendant will collect the minor child from the Plaintiff’s house and return the minor child after the contact visit

3.3.3 The minor child’s birthday will rotate between the parties yearly, so that one year is spent with the Plaintiff and the next year with the Defendant

3.3.4 The minor child will spend half of the December school holiday with the Defendant, subject to the condition that Christmas and New Year’s will rotate between the parties yearly.  Other school holidays will rotate between the parties so that one holiday will be spent with the Defendant and the next holiday with the Plaintiff.

3.3.5 The parental responsibilities and rights with regard to the guardianship of the minor child, as contemplated in Section 18(2)(c) and Section 18(3) of the Children’s Act, 38 of 2005, be awarded to the parties jointly.

4. An order in terms whereof the Plaintiff is entitled to 50%, alternatively such a part of the Defendant’s pension interest which the court may deem fair and reasonable, in the XXX PROVIDENT FUND, administered by YYY with PENSION NUMBER: 12345678; (Prayer for pension fund claim in terms of marriage in community of property)

5. An order in terms whereof the XXX PROVIDENT FUND must pay or transfer 50%, alternatively such a part of the said pension interest in the XXX PROVIDENT FUND which the court may deem fair and reasonable, within 60 days of being informed of how the amount must be dealt with in accordance with the Plaintiff’s election; (Prayer for pension fund claim in terms of marriage in community of property)

6. An order in terms whereof the contents of paragraphs 4 and 5 are recorded in the records of the XXX PROVIDENT FUND; (Prayer for pension fund claim in terms of marriage in community of property)

7. Division of the joint estate (Prayer for division where the parties are married in community of property)

8. An order in terms whereof the Defendant forfeits his one-half share in the benefits arising out of the marriage in community of property; (Prayer for claim for forfeiture of benefits of a marriage in community of property)

9. An order that the Defendant transfer to the Plaintiff one-half, or such portion of the Defendant’s estate as the Honourable Court may find to be just and equitable, in terms of Section 7(3) of Act 70 of 1979 (Prayer where parties are married out of community of property before 1 November 1984)

10. An order that the Defendant renders to the Plaintiff an account supported by documentary proof containing full particulars of the value of the Defendant’s estate in order to determine the difference in the accrual between the parties’ respective estates; (Prayer where parties are married out of community of property after 1 November 1984 with inclusion of the accrual system)

11. Debating of the aforesaid account (Prayer where parties are married out of community of property after 1 November 1984 in terms whereof the accrual system is included)

12. Payment to the Plaintiff of any amount to which the Plaintiff may be entitled in terms of the provisions of Chapter 1 of the Matrimonial Property Act 88 of 1984 (Prayer where parties are married out of community of property after 1 November 1984 in terms whereof the accrual system is included)

13. An order in terms whereof each party retain the assets currently registered in his name as his exclusive property (Prayer were parties are married out of community of property in terms whereof the accrual system is excluded)

14. An order in terms whereof the Defendant pays maintenance to the Plaintiff in respect of herself, in the amount of R 100.00 (One Hundred Rand) per month.  The first payment of maintenance will take place by way of electronic transfer into the Plaintiff’s bank account on the first day of the month which follows the month is which this decree of divorce is granted (Prayer for maintenance in respect of the Plaintiff)

15. Cost of suit, only if the action is defended

16. Further and/or alternative relief. 

TIP: The example is for illustrative purposes only. Your prayers will depend entirely on the contents of your summons.
The Court will often indicate, for example, that it grants “Prayers 2, 3 and 4”. That means that the wording of your prayers may become the wording of the final order – so its important to state clearly and exactly what you want.

Once your summons has been drafted, you must attach all the necessary documents (copies of ID documents etc.) and forms (annexure A if applicable). Then you must complete the statistics form that the Registrar will give to you.

After all this is done, the registrar will ‘issue’ the summons. Basically, he / she will open a court file, stamp your summons and assign a case number to your divorce. This process turns your summons into a formal Court document.

TIP: It is a good idea at this stage to make and keep extra photocopies of the bundle.

Now that your summons have been issued, you need to make at least two sets of photocopies of the entire bundle and have the summons served by the sheriff of the Court.

A sheriff is an officer of the Court. He /she is required to issue and serve the first pleading (divorce summons) in divorce proceedings on your spouse. In divorce actions, he / she has to serve the summons on your spouse in person.

Determine which sheriff needs to serve the summons on your spouse by referring to the area in which your spouse resides. A sheriff has certain service areas and will only serve pleadings in such areas.

A sheriff charges a fee for every time he tries to serve a summons on your spouse. If the summons could not be served, either because the residential address provided is incorrect or because the spouse was not present at the address, the sheriff ‘s return of service will indicate that he was unsuccessful and the reason. If this is the case, you will have to instruct the sheriff again. In the case that the summons was served successfully on your spouse, the sheriff will write a return of service indicating that he served the summons on your spouse in person.

TIP: Ensure that the residential address of your spouse given to the sheriff is correct. This will prevent multiple unsuccessful attempts of service which may lead to higher sheriff’s fees.
If you have reason to believe that your spouse will try to evade the sheriff, it may be useful to provide the sheriff with a photo of your spouse, or a copy of his ID book, if you have it.

After your spouse received your summons, he / she has 10 Court days to serve a Notice of Intention to Defend upon you before you may proceed with an unopposed divorce.

If your spouse does not serve a notice on you indicating that he wishes to defend the action and file the same notice at the Court within the 10 Court days from date that he / she received the divorce summons from the sheriff, then the Court may assume that your spouse does not wish to defend the action. Your spouse’s failure to serve and file the notice will further imply that he / she agrees to the terms set out in your divorce summons and you may ask the Court to grant an order in terms of your prayers included at the end of your divorce summons.

If your spouse does serve a Notice of Intention to Defend upon you, the matter has just become opposed and you need to seek legal counsel as soon as possible.

TIP: If you and your spouse approached the Court together in order to obtain a decree of divorce, you may draft the divorce summons in accordance with both your wishes and once the divorce summons was issued at Court and served by the sheriff, then your spouse may file a notice at the Court indicating that he or she do not defend the divorce action and that he or she agrees to the terms set out in the prayers of your divorce summons.

The plea is the Defendant’s answer to the Plaintiff’s particulars of claim. The Defendant must use the plea to answer each and every allegation of the Plaintiff and to set out his or her defence clearly.

Your spouse has to deliver his or her plea to you and to the Registrar of the Court within 20 court days of the date on which he or she delivered his or her Notice of Intention to Defend to you.

Along with the plea, your spouse may deliver a special plea and / or counterclaim, but those aspects are dealt with elsewhere.

Your spouse has to answer to your allegations by making:

  • admissions
  • denials
  • confessions and avoidance
  • non-admissions and
  • stating multiple and/or alternative defences.

Your spouse will answer to each allegation in your particulars of claim by referring to the specific paragraph and then using one of the above to answer to the allegation. To explain the difference between these, short descriptions and examples follow:
Admissions:
The Defendant should admit those facts alleged by the Plaintiff which are not in dispute.  The Defendant can only admit to an allegation if he or she acknowledges and accepts that allegation.  Any allegation in the Plaintiff’s particulars of claim which is not specifically dealt with in the plea will be considered to be admitted.

Once the Defendant have admitted an allegation that admission stands.  If he or she wishes to withdraw the admission at a later stage he or she will have to file a notice of amendment with a supporting affidavit. The Court has to approve the amendment and will not grant such an amendment lightly. It is therefore very important for the Defendant to make sure that he or she only admit those facts which really are not in dispute.

Example of an admission
AD PARAGRAPH 3:
The contents of this paragraph are admitted.

Denials:
If the Defendant disputes an allegation made by the Plaintiff, he or she must deny that allegation in his or her plea.  A denial is regarded as a sufficient reply to an allegation, but if a denial also includes a defence. the facts in support thereof must be included – otherwise it could amount to a ‘bare denial’ and be prejudicial to the Defendant.

Example of a denial that does not include a defence
AD PARAGRAPH 6.3
The contents of this paragraph are denied.

Example of a denial that does include a defence
AD PARAGRAPH 6.4
The contents of this paragraph are denied and the Defendant specifically pleads that it is the Plaintiff who conducted an adulterous relationship with a certain Mr X.

If the Plaintiff’s allegation contains several facts the Defendant must make sure that it is clear which of those facts he or she denies and which he or she admits or whether he or she is denying all of the facts.

Example of a denial where only certain of the alleged facts are denied
The Plaintiff’s allegation reads as follows: “The Plaintiff and Defendant married each other in community of property at Pretoria on the 9th of January 2004, which marriage still subsists.”

AD PARAGRAPH 4
The Defendant denies that he married the Plaintiff in community of property and specifically pleads that the parties were married out of community of property with the exclusion of the accrual system at Pretoria on the 9th of January 2004 and that the marriage still subsists.

Confession and avoidance:
This is when the Defendant admits an allegation, but allege some other fact which destroys the legal consequences of the Plaintiff’s allegation.

Non-admissions:
The Defendant may make a non-admission when the Plaintiff makes an allegation which does not fall within the Defendant’s personal knowledge.

Example of a non-admission
AD PARAGRAPH 6.8
The Defendant has no knowledge of the allegations contained in this paragraph and can therefore not admit or deny such allegations and puts the Plaintiff to the proof thereof.

Multiple and alternative defences:
The Defendant may plead multiple defences to the Plaintiff’s claim, provided that they are clearly distinguished from each other.

Example of multiple defences
AD PARAGRAPH 6
The Defendant pleads that the marriage has not broken down irretrievably for the following reasons:

  1. The Defendant still loves the Plaintiff;
  2. The Defendant is seeking help with his dependence on drugs and has not used any drugs for the last six months.

The Defendant may also state more than one defence in the alternative if those defences are not mutually destructive.

Example of an alternative defence
AD PARAGRAPH 6
The Defendant pleads that the marriage has not broken down irretrievably for the following reasons:
1.      The Defendant still loves the Plaintiff;
2.      The Defendant is seeking help with his dependence on drugs and has not used any drugs for the last six months.

Alternatively,

If the Court finds that the marriage has broken down irretrievably, the Defendant pleads that it is not due to the defendant’s behaviour, but due to the following reasons:

  1. The Plaintiff argues constantly with the Defendant;
  2. The Plaintiff does not contribute financially to the joint household at all.

TIP: This is merely for your information. Your attorney should have the necessary skills and training to advise you on what consitutes substantial problems in your spouse’s plea and what can safely be ignored.

A counterclaim is very similar to the original particulars of claim, but this time it would be your spouse setting out and asking the court what he or she wants the court to order. If your spouse wants to enter a counterclaim, he or she has to do serve it on you at the same time as his or her plea.

The basic content and style of the counterclaim will be almost exactly like that of the original particulars of claim.

It would be useful for you to make a photocopy of the counterclaim and make some notes at each paragraph, indicating whether the contents are true or not, and where appropriate giving a short explanation. This will then help your attorney to help you to draft your plea to the counterclaim.

TIP: The counterclaim is almost exactly like the original particulars of claim, only this time it is your spouse making the avernments and asking the Court’s intervention.

If your spouse served a counterclaim on you, you have a limited time to enter your plea to his or her counterclaim.

Much like the Counterclaim looks and works like the Particulars of Claim, the Plea to the Counterclaim looks and works exactly like the Plea – the only difference being that you are now the one that has to respond in one of the four ways discussed to each allegation in the Counterclaim.

As indicated on the previous page, you can prepare for drafting the Plea to the Counterclaim by making a photocopy of the Counterclaim and making some notes on this photocopy for yourself and your attorney.

It is important to get your attorney to assist you with the drafting of the Plea to the Counterclaim.

TIP: The Plea to the Counterclaim works exactly like the Plea to the Particulars of Claim, except that the parties have now switched roles.

You have now received a Plea and perhaps even a Counterclaim from your spouse. You may now draft and serve a Reply to your spouse’s Plea, but it is very rarely necessary. Do not be tempted to serve and file a reply if no reason exists for you to do this. Remember that the nitty-gritty aspects of the divorce will be handled in Court and that unnecessary pleadings can give way to a cost order against you.

A reply is not necessary if you merely want to deny averments made by your spouse in his or her Plea. If you do not serve and file a Reply, you are automatically regarded as denying the averments made by the Defendant in the Plea.

A reply is necessary if you want to bring new facts to the Court’s attention. In practice, this may transpire if your spouse confessed and avoided some of the averments made in your Particulars of Claim or if your spouse raised a Special Plea that constitutes a point that you wish to argue about.

You will address averments here in your Reply in the same way as in a Plea.

Remember that you have 15 court days after the service of the Plea on you to serve and file your Replication.

TIP: It is rarely necessary to file and serve a Reply.
Your attorney will give you guidance if it is necessary to serve and file a Reply.

At any time during (or before) the divorce process, you may (and should!) attempt to settle the matter out of court.

A “Round Table” meeting is where all the parties get together to attempt to settle the matter or as many of the issues in dispute as possible. It is basically a negotiation between the parties. The content of such talks, to the extent that it represents an attempt in good faith to settle the matter, is ‘priviliged’. This means that it cannot be used directly in court ( whatever information you give the opposing party they will of course still have after the meeting, but neither of you are allowed to say in court what concessions or settlement offer either of the parties made if the matter is not settled). The reason for the privilige is to allow the parties to speak freely and give their best attempt to settle the matter out of court. Should the matter be settled at the meeting, the attorneys will draft a settlement agreement, which the parties will sign. Afterwards, this agreement will be taken to court to be incorporated into the court order.

Mediation is a process where a neutral third party is appointed (the “mediator”) to assist the parties in trying to reach a settlement agreement. The mediator controls the process as agreed upon by the parties, but does not make any determinations as to the content. The mediator basically just facilitates the negotiation process between the parties, and has now binding authority or power on the parties – any party can leave the mediation (just like a negotiation) at any time.

If a mediation is successful or partly successful (the parties agreed on only some of the issues but will still fight about some others in court), the agreements will be reduced to writing and taken to the Court, exactly as when a settlement was reached through negotiations.

TIP: Even if you agree on and settle everything, you will still need to issue summons and go to Court. This is because only the Court can grant a decree of divorce – you cannot get divorced by agreement
Mediation is strongly encouraged and in some cases required by legislation – particularly where it concerns the children

If you have reached a settlement through negotiation or mediation, the next step is to reduce the settlement agreement to writing and have all the parties sign it. If everything has been settled, your spouse has to serve and file a document stating that he or she withdraws his or her defence, as the matter has been settled. The divorce then becomes unopposed and can be placed on the unopposed roll.

If there are minor children involved, the family advocate will have to approve of and stamp the settlement agreement before the court will accept it.

In Court, you will ask the court to incorporate the settlement agreement into the court order. Unless the Court has some serious concerns with some aspects of the settlement agreement, the Court will incorporate the agreement into the court order, and everything you agreed to will therefore also become an order of court.

A settlement agreement should address everything that was addressed in the particulars of claim and further court documents, as well as any other matters the parties want to include. The wording can be very important later on, so it is advisable to get legal assistance with drafting the settlement agreement.

In any event, you should at least try to cover the matters listed in the “Step-by-step” window on this page.

TIP: Parties often agree to a settlement many months or years into a divorce. In many cases, this settlement could easily have been reached many months before, not only speeding up the divorce but also resulting in a significantly cheaper process for both parties. For this reason, it is advisable to make a genuine good faith attempt to settle a matter fairly between the parties very early on already.

If your spouse no longer wants to defend the matter, or it has been settled through negotiations or mediation, he or she can serve and file a notice indicating that your spouse withdraws his or her defense and the reason.

Once this notice has been served and filed, the matter becomes unopposed again and you can proceed on that basis; the only difference is that, if the matter has been settled, you now have to submit the settlement agreement to court and ask for a court order incorporating the settlement agreement, rather than the prayers as originally set out in your particulars of claim.

TIP: Until the opposing party withdraws their defense, the matter remains opposed.

If the opposing party did not deliver a Notice of Intention to Defend, and at least 10 court days have passed since the summons was served upon him / her, you may proceed with your divorce as an unopposed divorce and apply for a date on the unopposed roll.

This is a task that can only be performed if you know what the process is to obtain a court date in the court where you are going to get divorced; unfortunately the process differs slightly from court to court. You should phone the Registrar or go to Court and ask the Registrar what the process is to obtain a court date in that specific court. The process might be that you will have to write your case’s information in a register or fill in some forms. After the application for a court date is made, the Registrar will set the case down and inform you of the date that you have to be in court.

If you do not hear from the Registrar within a week or two, you should follow up by phoning or going to the Registrar. Remember to take your case number along with you!

TIP: Phone the Registrar of the Court where you are going to get divorced or go to Court and ask the Registrar what the process is to obtain a court date.
Some courts require you to inform your spouse of the court date even if the divorce is not opposed.

It is very important that you go to Court on the date and time given to you by the Registrar. Go early so that you have time to find out in which room your matter will be heard.

At Court the Magistrate will have a list of cases for the day so you will not necessarily be first in line. You will have to wait your turn. When your case is called, stand up and tell the Magistrate that the divorce is unopposed and tell him whether there is a settlement agreement or not. Thereafter you will take an oath or affirmation. You should provide the Court with the documents showing that and when the summons was served on your spouse personally (the sheriff’s ‘Return of Service’). Now the Magistrate will ask you questions that will include some of the following:

  • When did you get married?
  • Where did you get married?
  • How were you married (in community of property, out of community of property, ex.)?
  • You will be shown your marriage certificate and the Magistrate will ask you whether it is the original marriage certificate and whether the information thereon is correct.
  • Where do you currently reside?
  • Is this place your permanent place of residence?
  • Do you and the Defendant still live together as husband and wife? (If you answer positive, provide the Court with the details of who will move out of the common home and when). Provide the Court with the reasons for the breakdown of the marriage.
  • Are there any children born from the marriage? (If you answer positive state their names, ages and gender).The Magistrate will continue asking questions relating to parental rights and responsibilities, contact and maintenance of the children.
  • Have you spoken to the children about the divorce?
  • Do you ask for maintenance from the Defendant for yourself today? (If you answer positive, provide details to the Court).
  • If there is a settlement agreement, it will be shown to you and you will be asked if it is the original settlement agreement and if it is you and the Defendant’s signatures thereon.

TIP: Take your original marriage certificate and original settlement agreement (if any) to Court.
If you arrive at Court on the date specified for the divorce, go to the clerk of the Court and tell him that you are there and ready to proceed with the divorce. Please provide him with your original marriage certificate and original settlement agreement (if any).
Talk loud and clear in Court.
Always look clean and neat in Court. Men should wear ties and jackets. Women should wear formal clothes.

If the divorce is unopposed the Magistrate will most probably give the order immediately after the Plaintiff has answered all the necessary questions.

If the divorce is opposed the Magistrate may give the order immediately after the Plaintiff and Defendant’s legal representatives have given their arguments. The order might also be given on another day.
The Court may grant any of the following orders:

  • Judgment for a party in respect of her claim (in so far as she has proved her claim)
  • Judgment for a party in respect of his defence (in so far as he has proved his defence)
  • If the evidence does not justify giving a judgment for either party (it is called “absolution from the instance”), the Court will not give judgment to either party.

The Court may award costs to a party, may decide not to award costs to a party or may apportion the costs of the proceedings between the parties.

Once the Court granted a decree of divorce, you and your spouse are divorced immediately – even though you will probably have to go back at a later date to collect the written court order that confirms this.

At this stage, the divorce proceedings are complete and you are officially divorced. Make sure to obey the Court order.

TIP: If the Magistrate gives the order on another day, the legal terminology is “judgment is reserved”.

An opposed divorce can get very complicated, particularly in Court, and you need the assistance of an attorney (and possible an advocate as well). As such, what follows is merely a description of the process you can expect to encounter.

The legal representative for the Plaintiff will start the proceedings. He or she will inform the Court of the issues that are in agreement and those that are in dispute between the parties. He or she will state the Plaintiff’s case. Thereafter the Defendant’s legal representative has an opportunity to state what the Defendant’s case is.

Now the legal representative for the Plaintiff will call the Plaintiff and the witnesses that will testify for the Plaintiff. The Plaintiff and the witnesses will be called individually.

Each witness will, firstly, be asked questions by the Plaintiff’s legal representative. This is called examination-in-chief and the questions should be “open questions”. The questions will start with the words “why”, “when”, “how”, “where”, ex. Thus the question should be formulated so that the witness cannot only answer “yes” or “no”, for example:
“Where did your husband stay while you were in Cape Town? He stayed with his girlfriend in Johannesburg.”

After examination-in-chief the legal representative for the Defendant will ask questions to the witness. This is called cross-examination. All the questions should be “leading questions”. This means that the questions should be formulated so that the witness has to answer “yes” or “no”, for example:
“Did you see your husband with another woman?  Yes.”

The aims of cross examination are to:

  • Elicit favourable evidence
  • Discredit the evidence of the witness that is testifying
  • Discredit the witness that is currently testifying
  • Discredit the evidence given by another witness and discredit that witness
  • Put your version of the events to the court
  • Parade your case

Hereafter the Defendant’s legal representative will call the Defendant and the witnesses that will testify for the Defendant. The Defendant and the witnesses will be called individually. The legal representative for the Defendant will do the examination-in-chief and the Plaintiff’s legal representative will cross-examine the Defendant and witnesses. At the end the legal representative for the Plaintiff will close his case by giving his argument. He will deal with the facts and the law. The legal representative for the Defendant will then also deal with the facts and law when giving his argument.

After the closing arguments, the Court will deliver judgment. This can happen immediately, or only after a few days or weeks, depending on the complexity of the matter and the evidence.

TIP: People should always be neat and clean in Court. Men should always where a suite and tie. Women should look well-dressed and formal.

To set the case down means that the Registrar puts the case on the court role for that specific court day. This is a task that can only be performed if you know what the process is to set a case down in the Court where you are going to get divorced. You should phone the Registrar at the Court where you are going to get divorced or go to Court and ask the Registrar what the process is to set a case down.

You should take an original and a copy of the Notice of Set Down to Court and the Registrar will stamp both the original and the copy. If the divorce is opposed, the Registrar will put the original Notice of Set Down on the court file, while the copy should be delivered to your spouse at least 20 court days before the trial date. It needs to be added that if the Plaintiff does not deliver the Notice of Set Down within 15 court days after the pleadings have been closed, the Defendant may do so.

If the divorce is unopposed the Registrar will only set the case down if the Plaintiff request so in writing. This request and the Notice of Set Down need not be served on your spouse.

Below is an example of what a Notice of Set Down form looks like.

IN THE REGIONAL COURT FOR THE DIVISION OF GAUTENG
[HELD AT PRETORIA]

                           CASE: _______

In the matter between:

_____________________                                                                           PLAINTIFF 
ID:___________________

and

_____________________                                                                      DEFENDANT  
ID:___________________

 

NOTICE OF SET DOWN

TAKE NOTICE that the Plaintiff intends to enroll the above mentioned matter for hearing on________________ AT 09H30 or as soon thereafter as the legal representative for the Plaintiff/ the Plaintiff may be heard.

(IF THE CASE IS OPPOSED DO NOT FILL IN THE “TAKE NOTICE FURTHER”-PART HEREUNDER)

TAKE NOTICE FURTHER that the Plaintiff will request the granting of an order in the following circumstances:

  1. The summons was served on the Defendant on                       (date)      .
  2. The dies induciae (10 days) expired on                        (date).
  3. The Defendant has failed to enter an appearance to defend/the parties settled the matter.

SIGNED AT ________________ ON THIS THE ___ DAY OF ______________.  

 ________________________________
Attorney’s/ Plaintiff’s name and_____ 
surname________________________
(Address, telephone number, fax number)

TO:                       THE REGISTRAR 
                              REGIONAL COURT FOR THE DIVISION OF GAUTENG
                              PRETORIA

AND TO:            Defendant’s name and surname
                              (Address, telephone number, fax number))

TIP: The practices of each court differ. Phone the Registrar of the Court where you are going to get divorced or go to Court and ask the Registrar what the process is to set a case down.
“Court days” does not include Saturdays, Sundays and public holidays.

The Court may decide that a conference should take place before the actual trial. You may also request in writing that you and your spouseor the legal representatives have a conference before a Magistrate. This conference is called a “pre-trial”, because it is a conference before the trial. The main purposes of such a conference is to consider a settlement and to minimise the issues in dispute. This request should be made in duplicate to the Registrar. You should include in this request the matters that you want to be considered at this conference. This request is taken by the Registrar to the Magistrate who will decide whether a pre-trial conference should be held. If the Magistrate decides that such a conference should be held, the Registrar will sign a letter that will be delivered by hand or registered post (together with a copy of the request) to the parties or their representatives at least 10 court days prior to the date fixed for the conference. The following are issues that may be considered at the pre-trial conference:

  • The simplification of the divorce issues
  • The necessity or the desirability to amend the documents (pleadings)
  • The possibility of obtaining an admission of a fact so that that fact does not have to be proved
  • The limitation of the number of experts that will give evidence at the trial

TIP: If a party is absent from the conference the Court may make an order that such a party pays costs that was incurred as a result of his absence.

All the documents and material that a party intends to use at a trial must be “discovered”. This means that it must be made available for inspection and copying to the other party before trial. You may not use documents or material that you did not discover through this process at trial. Discovery can be very complicated and your need legal assistance to properly protect your interests.

You may require by notice that your spouse present you with a list of all documents, tape, electronic, digital or other forms of recordings that is/was in his  possession. The list should be in the form of an affidavit and consist of three separate parts:

1) Documents, tape, electronic, digital or other forms of recordings that is/was in his or her possession;
2) Documents, tape, electronic, digital or other forms of recordings that is/was in his or her possession, but that he has an objection to produce; and 
3) Documents, tape, electronic, digital or other forms of recordings that is no longer in his possession. This affidavit should reach you within 20 court days after the other party received the notice.

If you want to read the documents or listen to the tape, electronic, digital or other forms of recordings in the list (thus inspect), you may serve a notice again on your spouse. Within 5 court days after the latter notice was received by your spouse, he or she should present you with a notice stating a time within 5 court days of delivery of this notice when you may inspect the documents and other material at the office of his or her attorney or other convenient place. If you have received notice of a time for the inspection you may inspect the documents and other material for a period of 5 court days during normal office hours and make copies thereof.

If you believe that there are in addition to the documents, tape, electronic, digital or other forms of recordings that were disclosed other documents, tape, electronic, digital or other forms of recordings which were not disclosed, you may give notice again for inspection. If your spouse believes that the documents and other material are not in his possession, he or she should make an affidavit stating which documents are not in his or her possession and where it is (if he or she has knowledge of its whereabouts).

Tips

  • A tape recording includes a sound track, film, magnetic tape, record and any other material on which visual images, sound or other information can be recorded.
  • The “court days” as specified do not include Saturdays, Sundays and public holidays.
  • Do not underestimate the power of discovery. It can be of great help in obtaining information regarding your spouse’s financial status. Remember that your spouse has to reply under oath. If he or she lies, your spouse may be prosecuted for perjury.

Step-by-step

  • Assist your attorney with information regarding available documentation and what you think your spouse has. Your attorney will also advice and assist you with the rest of the process.

  • Require by notice that your spouse presents you with an affidavit that includes a list of all documents, tape, electronic, digital or other forms of recordings that is/was in his or her possession;

  • The affidavit should reach you within 20 court days after he or she received the notice;

  • Serve a notice on your spouse and require a time for inspection of the documents and other material;

  • Within 5 court days after the notice was received by him or her, your spouse should present you with a notice stating a time within 5 court days when you may inspect the documents and other material;

  • You may inspect the documents and other material for a period of 5 court days during normal office hours and make copies thereof;

  • Give notice again for inspection if you believe that there are in addition to the documents, tape, electronic, digital or other forms of recordings disclosed other documents, tape, electronic, digital or other forms of recordings which were not disclosed;

  • Within 5 court days after the notice was received by your spouse, he or she should present you with a notice stating a time within 5 court days when you may inspect the documents and other material;

  • You may inspect the documents and other material for a period of 5 court days during normal office hours and make copies thereof;

  • If your spouse does not have the documents or material in his or her possession, your spouse should make an affidavit stating which documents and material are not in his or her possession and where it is (if he or she has knowledge of its whereabouts).

If you have reached a settlement through negotiation or mediation, the next step is to reduce the settlement agreement to writing and have all the parties sign it. If everything has been settled, your spouse has to serve and file a document stating that he or she withdraws his or her defence, as the matter has been settled. The divorce then becomes unopposed and can be placed on the unopposed roll.

If there are minor children involved, the family advocate will have to approve of and stamp the settlement agreement before the court will accept it.

In Court, you will ask the court to incorporate the settlement agreement into the court order. Unless the Court has some serious concerns with some aspects of the settlement agreement, the Court will incorporate the agreement into the court order, and everything you agreed to will therefore also become an order of court.

A settlement agreement should address everything that was addressed in the particulars of claim and further court documents, as well as any other matters the parties want to include. The wording can be very important later on, so it is advisable to get legal assistance with drafting the settlement agreement.

In any event, you should at least try to cover the matters listed in the “Step-by-step” section on this page.

Tips

  • Parties often agree to a settlement many months or years into a divorce. In many cases, this settlement could easily have been reached many months before, not only speeding up the divorce but also resulting in a significantly cheaper process for both parties. For this reason, it is advisable to make a genuine good faith attempt to settle a matter fairly between the parties very early on already.

Step-by-step

  • A settlement agreement should contain all or most of the following headings to ensure every aspect of the marriage relationship are covered (unless it is clearly not applicable):

    • Parental responsibilities and rights towards the minor children.

    • Maintenance for minor or dependent children.

    • Spousal maintenance.

    • Assets: Immovable and movable.

    • Pension funds, insurance policies or retirement annuities.

    • Debts of the state.

    • Legal costs (if applicable).

    • Non-variation clause: Full and final settlement.

    • Signature of both parties in front of two witnesses older than 16 years of age.

    • Initials of each party and the two witnesses at the bottom right hand corner of each page and annexure (if applicable) of the settlement agreement.

    • The parties may discuss the contents of the settlement proposal by attending a roundtable conference (Link to Roundtable Conference) in order to provide the parties a platform to express their views and wishes.

    • The parties should only sign the settlement agreement once both of you have agreed to the contents and understand the contents and consequences of the settlement agreement.