Basic Divorce Guide for all courts in South Africa

Supplied by Adv. Muhammad Abduroaf (LL.B LL.M)
(Advocate of the High Court of South Africa)

Legal Advice regarding divorces

If you want to get divorced from your spouse, I strongly advise that you approach a legal practitioner or an attorney to attend to it on your behalf. This I would implore even more under the following circumstances:
– There will be a dispute over care and visitation rights over the child/children;
– One of the parties will be applying for forfeiture of patrimonial benefits from a marriage in community of property;

-The joint estate is huge or complicated; or

-The other party will be making use of legal representation.

General divorce procedures

If, however, you would like to know the general procedures on how to go about obtaining a divorce decree, they are listed summarily below. Many rules regulate divorce processes, and the summary below does exclude some of them. These include pretrial conferences, judicial case management, exceptions, strikeouts, compelling compliance, service addresses, etc. Other matters incidental to divorce proceedings, for example, interim arrangements pending the divorce regarding maintenance for you or your children, and care and contact regarding children, are not dealt with. Therefore, please consult a legal practitioner or the divorce court throughout your divorce process, should you decide to attend to the divorce yourself.

Summons and Particulars of Claim in a Divorce Matter

A summons needs to be drafted, which should be issued by the divorce court to commence the divorce process. It should have on it the details of the court you will be issuing the divorce from, details of the parties, e.g., names, occupation, and address, etc. Every High Court in the area where you live has the authority to attend to a divorce.

You should then draft particulars of claim outlining relevant matters concerning the marriage, children, reasons for wanting a divorce, and what you want the court to grant you in a divorce order. The particulars of claim you attach to the summons.

Once you have your summons and particulars of claim in order, you have to have the summons issued at court. To do this, make three (3) copies of your set of documents (Summons and Particulars of Claim) and have it issued at court.

Issuing and Service of a Divorce Summons

Once you are at the divorce court, go to the clerk/registrar of the court and have your documents issued. The clerk/registrar will sign the summons and provide a case number and insert it on the summons.

You should then take the original and a copy (both must be signed and stamped by the clerk/registrar of the court) to the sheriff who serves documents where your spouse works or lives. You can ask the clerk/registrar of the court for those details. The extra copy of the summons and particulars of claim you should keep for your file and records.

Notice of intention to defend in a divorce matter

Once the sheriff serves the latter court documents, your spouse has two weeks to inform you whether he or she will be defending the divorce. This information is outlined in the summons.
If your spouse decided not to defend the divorce action, then after a period of two weeks has elapsed, you may set the matter down as an undefended divorce. If your spouse intends to defend the divorce, he or she would then have to do what follows.

Plea to particulars of the claim in a divorce matter

Once you receive notice of your spouse’s intention to defend the divorce, about a month later, your spouse or his or her attorney should serve and file a plea. The plea should outline which parts of your particulars of claim your spouse agrees to (or disagrees with), which would give everyone a direction of what to prove in court.

Counter Claim in a divorce matter

Your spouse might want to file a counterclaim. In the same manner, as you outlined your case as to what you want from the court and the reasons therefore in your particulars of claim, your spouse can do this in a counterclaim.

A counterclaim might still be filed if your spouse agrees to a divorce, but maybe wants primary care of the children, whereas in your particulars of claim, you asked for primary care. You should then, within 10 (ten) days, plead to the counterclaim in the same manner in which your spouse pleaded to your particulars of claim.

Obtaining a Trial date for your Divorce

Once you have received the plea, with or without a counterclaim, or have pleaded to your spouse’s counterclaim, you should then approach the clerk/registrar of the court for a trial date. This you or your spouse may do. Various processes may take place up until obtaining a trial date. These include pre-trial conferences and judicial case management proceedings, etc. I will not deal with those items herein.

Discovery in Divorce matters

While you are waiting for a trial date, and long before that date, you may ask or may be asked to provide under oath a schedule of books and documents in your possession and under your control relating to the divorce. This could be policy documents, title deeds, etc., and which you or your spouse might want to make use of at trial. Once you receive this schedule, you may inspect and request copies of the documents.

Divorce day / Trial day

If your spouse does not defend the divorce within the allowed time period, go back to court and ask for an unopposed divorce date, and attend to your divorce on that date. If, however, your divorce is defended, a trial should ensue. During the trial, each party will prove its case. Witnesses will be called, and at the end, the Magistrate or Judge will deliver the verdict.

Best of luck, and please, don’t take my word; contact a legal practitioner should you decide to get divorced.

Kind regards,

Advocate Muhammad Abduroaf (Cape Town | Western Cape)

LL.B & LL.M (Master of Laws) Constitutional Litigation

Advocate of the High Court of South Africa