After many years as a family lawyer in South Africa, working on uncontested as well as contested divorces, I have seen a number of unexpected outcomes, as well as situations where there have been changes of heart at various stages throughout the process – even to the point where couples have reconciled on the courthouse steps. While this is not always feasible, the next best solution is an amicable parting of ways. The South African courts will not hold parties to a marriage where one or both parties want the marriage to be brought to an end. That being said, in order to terminate a marriage, parties must embark on a process of divorce.
Contrary to popular opinion, the divorce process is one which can be concluded amicably via a settlement agreement or via litigation. The route that a divorce will then take will have a fundamental effect on how long the process will go on for, and at what expense – which is both financial and emotional – for both parties.
In certain instances, litigation is inevitable because of the issues which arise between the parties, it is important, therefore, that divorcing couples have the necessary support to guide them through the divorce process, with legal support being paramount to ensure that parties to divorce are protected during the process of the negotiation and dissolution of their marriage. This is in order to ensure that choices made pre-divorce are suitable post-divorce, when the repercussions of negotiation and conclusion are lived.
Here’s a brief outline on what happens when spouses go through a divorce, including contested and uncontested divorce processes.
What are the grounds for divorce in South Africa?
Currently in South Africa, there are three grounds upon which a spouse can seek a divorce. Namely:
- The irretrievable breakdown of a marriage;
- Mental incapacity of a spouse that is incurable and continuous for a period of at least two years;
- Unconsciousness of a spouse for a period of at least six months.
In order for a court to grant a divorce, the onus is on the spouse seeking the divorce to prove that one of these grounds are present.
What is meant by irretrievable breakdown of a marriage?
Irretrievable breakdown of a marriage as grounds for a divorce includes:
- Physical abuse
- Mental abuse
- Separate living arrangements
- Loss of love and affection and a complete breakdown in communication
- Illicit substance abuse
If any one of these grounds are present within a marriage, a spouse may approach a court to obtain a divorce order.
How is the divorce process initiated?
The divorce process is initiated by one of the spouses serving a summons on the other spouse. The reply to the summons or the lack of reply thereto, decides the nature of the divorce process that unfolds.
Contested or uncontested divorce
The spouse being served may either agree or not agree to the divorce. If the spouse agrees then the process will be uncontested, if the spouse does not agree, the process will be contested.
Divorce settlement agreement in South Africa
Upon service of the summons and the reply of the served spouse being received, the next step would be working towards settling every facet of the dissolution of the marriage between the spouses. This is done through the process of drafting a settlement agreement that has both the spouses input involved.
The division of the assets between the spouses, as governed by the matrimonial property regime relevant to the marriage, is incorporated into the settlement agreement.
Maintenance, care, contact and guardianship of children
If the spouses have a child or children together, the next step would be to decide how the maintenance, care, contact and guardianship of the child(ren) is to be administered after the divorce. This is quite possibly the most important step as the courts are deeply concerned about the best interests of the minor child(ren), post-divorce. It is during this step that external professionals may be appointed or recommended in order to achieve the best possible parenting plan to serve the interests of the children.
External professionals such as clinical psychologists, child psychologists, case managers, parenting coordinators and mediators may be appointed in order to assess the circumstances of the parties, and to assist the spouses to reach a meaningful and functional settlement. If one of the spouses is entitled to spousal maintenance based on the lifestyle that they had lived before seeking divorce, that spouse may also claim spousal maintenance from the other spouse.
The role of the Family Advocate
If there were children of the marriage, the settlement agreement is submitted to the Family Advocate for endorsement.
The Family Advocate acts to ensure that provisions made for the exercise of parental rights and responsibilities post-divorce are in the best interests of the children.
If the Family Advocate is satisfied with the settlement agreement and the parenting plan therein, the settlement agreement will be endorsed, and the parties may then approach the High Court or the Regional Magistrate’s court in order to get the divorce finalised.
Granting of the divorce order
If the Court is satisfied with the evidence brought by the parties, a final divorce order will be granted and the settlement agreement will be made an order of court.
Once the settlement agreement is made an order of court, any failure to abide by its provisions is a contempt of court, and an aggrieved party is able to approach the Court for relief on the grounds of breach in terms of the settlement agreement.
It is essential that the provisions of the settlement agreement are well-considered and serve to protect all parties involved in the divorce action. It is prudent, therefore, that an attorney’s advice is sought to inform the terms of the settlement agreement in order to ensure that the divorce order is appropriate in the circumstances of the particular family.
As described briefly above, whilst all divorce processes conclude with a settlement agreement incorporated into a divorce order, there are two distinctly different processes to achieve this; that is uncontested divorces and contested divorces.
Uncontested divorce in South Africa
An uncontested divorce, where both parties want to divorce each other, is the simplest, quickest and cheapest divorce process. In an uncontested divorce, both parties may approach an attorney together and have their divorce finalized through joint instruction.
The instructed attorney will assist the parties to draft a settlement agreement which is then made an order of court when the divorce order is granted. The settlement agreement typically records the divorcing parties’ wishes with regard to division of their assets and, if the parties have children together, then the settlement agreement includes the exercise of parental rights and responsibilities post-divorce.
How long does it take for a settlement agreement to be reached in an uncontested divorce?
In uncomplicated estates, where parties are able to settle on issues of care, contact and maintenance of their children, then an uncontested divorce is suitable and may take as few as 3 – 4 months to complete. The cost of an uncontested divorce is determined by how complicated and protracted the settlement negotiations are, and how swiftly the settlement agreement is concluded.
An uncontested divorce does not mean, necessarily, that the parties initiate the process in singular agreement of the terms of their divorce.
If parties have a mutual wish to divorce, but have not achieved agreement on the terms of their divorce, they may approach mediation to have their differences of intention settled and the terms of their divorce recorded in a memorandum of understanding.
Once a memorandum of understanding is drafted, the parties may approach an attorney to draft a settlement agreement informed by the memorandum of understanding, and then to move their divorce on that basis.
So, subsequent to the completion of a mediated divorce process, parties may be referred to an attorney who will act for both parties to finalize their divorce with the granting pf a court order including their settlement agreement.
Contested divorce in South Africa
A contested divorce is essentially a litigated divorce and it is certainly often more emotionally and financially strenuous on both spouses, and it is a significantly lengthier process than an uncontested divorce.
A litigated divorce is initiated either by the unwillingness or inability of both spouses to agree to terms of their divorce. Typically, there is disagreement on division of assets in the estate, and/or parental rights and responsibilities.
Why is contested divorce expensive?
This process often involves the investigation and reports of experts including forensic psychologists, social workers and actuaries to inform the process and provide direction and resolution pertaining, the exercise or parental rights and responsibilities of minor children and/or maintenance for children and spouses.
In the case of the division of parties’ proprietary interests, experts such as forensic auditors and valuators may be appointed to give insight into the extent of the parties’ respective estates.
The investigation and reporting of experts is time-consuming and accordingly expensive, and requires a long-term commitment from all parties involved.
A litigious process is often divisive and embittering, and the duration and cost of the process is impacted by the extent of argument necessary to bring the divorce process to finality.
If you’re looking for a divorce lawyer or family law specialist in Johannesburg to assist you with a contested or uncontested divorce, contact the Witz Inc. Family Law experts, today. We will provide you with the best practical legal advice relating to your specific circumstances.