Divorce Process in South Africa | Law For Life (2025)

STEP-BY-STEP

Getting a divorce in South Africa follows a structured legal process, whether it is uncontested (both parties agree on the terms) or contested (the parties do not agree on the terms). Below is a step-by-step guide to the process:

Step 1: Determine the Type of Divorce

• Uncontested divorce: Both parties agree on the terms (division of assets, maintenance, child custody, etc.).
• Mediated divorce: the parties do not initially agree on the terms but are assisted by a mediator to resolve some or all of the issues in dispute. If the parties reach agreement on all issues, they can then proceed with an uncontested divorce.
• Contested divorce: The parties are unable to resolve their disputes over the terms, requiring a court trial, where a judge or magistrate will make the relevant determinations

Step 2: Choose the Legal Route

• DIY Divorce: Suitable for uncontested divorces held in the Magistrates Court; documents can be obtained online or from the Magistrates Court directly, with the help of the Clerk of the Court.
• Assisted Divorce: A lawyer drafts the necessary documents, handles any contact with the other party’s lawyer, and represents you in court .

Step 3: Draft and Issue Summons

• The Plaintiff (the person initiating the divorce) starts divorce proceedings by issuing a Combined Summons (a legal notice of divorce with attached Particulars of Claim). In a DIY divorce, this is done using standard forms with the assistance of the Clerk of the Court and in an assisted divorce, the :
• The Summons:
  • Records the name and ID numbers of the parties involved
  • Notifies one party (the Plaintiff) that the other party (the Defendant) he/she has instituted an action for divorce and seeks from the court relief based on the terms set out in the attached Particulars of Claim
  • Records the Defendant’s right to defend the claim; the steps that must be taken to do so, including the applicable times frames that apply, and the full address where the Plaintiff will accept service of legal documents

The Particulars of Claim includes:

• Full names, ID numbers and addresses of Plaintiff and Defendant;
• Date and place your marriage and marital property regime (i.e. in community of property, or out of community of property, excluding or including accrual;
• The names, genders, ages and dates of birth of any children born of your marriage or adopted by you and your spouse;
• The grounds on which the Court has jurisdiction to deal with the divorce;
• Grounds for divorce (irretrievable breakdown or mental illness/continuous unconsciousness) and the reasons why this has occurred
• Proposed terms for the division of assets, arrangements for the care of, contact with and access to children, child and spousal maintenance, if applicable. If the Parties have reached agreement on all issues and concluded a consent paper (settlement agreement), prior to the issue of summons, these terms will match the terms of the settlement agreement which will be attached.

Step 4: Service of the Summons

• The Sheriff of the Court serves the summons on the Defendant (spouse).
• Personal service is required—no email or postal service is accepted.

Step 5: Defendant’s Response

• The Defendant has 10 days (if in the same jurisdiction) or 20 days (if out of province) to respond.
• No response: The case proceeds as an uncontested divorce.
• Response filed (Notice of Intention to Defend): The divorce becomes contested.

Step 6: Negotiate and Settle Terms

• If a divorce is contested, both parties may still attempt settlement negotiations through:
• • Mediation
  • Legal representatives
  • The Family Advocate (for child-related matters)
• If an agreement is reached, a consent paper (settlement agreement) may then be drawn up and signed and made an order of the court as part of the decree of divorce that is granted.

Step 7: Trial (If No Settlement)

• If the Parties cannot reach agreement on all issues,, the case proceeds to trial.
• The court considers relevant evidence and testimony before making a ruling.

Step 8: Finalising the Divorce

• Whether contested or uncontested, the divorce is finalised when the Judge or Magistrate issues a final decree of divorce.
• If uncontested, the divorce may be granted in as little as 4–8 weeks.
• If contested, it can take many months or even years.

Additional Considerations

1. Children: The Family Advocate ensures that the proposed arrangements for the children involved prioritise their best interests.
2. Assets and Liabilities: Division depends on the marital regime under which you are married:
   • In community of property: 50/50 split of assets and debts.
   • Out of community of property (with accrual): The spouse whose estate shows a smaller accrual (increase), or even no accrual at all, may claim from the other spouse an amount that is equal to half the difference between the accrual in the parties’ respective estates
   • Out of community of property (without accrual): Each spouse keeps their separate property and no allowance is made for the spouse whose estate who has made a more modest or no accrual at all. However, a spouse married under this system can request a redistribution of assets, based on the circumstances.
3. Maintenance: Spousal and child maintenance may need to be determined and there may also be a need for interim maintenance pending the finalisation of divorce. This is known as a Rule 43 Application in the High Court or a Rule 58 Application in the Magistrates Court.

“Divorce is not the end of the story. It’s simply the end of one chapter, and the beginning of a new one.”
– Unknown

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