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Divorce in South Africa – Some Frequently Asked Questions

What is Divorce?

A Divorce is the dissolution of a marriage by means of an Order of Court. In other words, a divorce brings a marriage relationship to an end.

 

Who is allowed to grant a divorce?

Since a divorce entails the changing of a person’s status, a divorce may only be granted by a Court of Law. At the date of writing hereof the Courts who are empowered to grant divorces are the High CourtA High Court established in terms of the Superior Courts Act, 2013 and the Regional CourtA Regional Magistrates' Court established in terms of the Magistrates' Court Act, 1944..

 

What do I need to prove to be granted a decree of divorce?

Broadly speaking, in South African Law, there are two grounds upon which a Decree of Divorce may be granted. These are:

  1. The irretrievable breakdown of the marriage (Section 4 of the Divorce ActIrretrievable break-down of marriage as ground of divorce.—(1)  A court may grant a decree of divorce on the ground of the irretrievable break-down 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 marriage relationship between them. (2)  Subject to the provisions of subsection (1), and without excluding any facts or circumstances...);
  2. The mental illness or the continuous unconsciousness  of a party to the marriage (Section 5 of the Divorce Act5.   Mental illness or continuous unconsciousness as grounds of divorce.—(1)  A court may grant a decree of divorce on the ground of the mental illness of the defendant if it is satisfied— (a) that the defendant in terms of the Mental Health Act, 1973 (Act No. 18 of 1973)— (i) has been admitted as a patient to an institution in terms of a reception order; (ii) is being detained as a State patient at an institution or other place specified by the Minister of Correctiona...);

 

How do I proceed with a Divorce?

There are two ways to proceed with a divorce, namely:

  1. Uncontested Divorce;
  2. Contested Divorce;

 

How much does a divorce cost?

The cost of a divorce depends on various factors. Most particularly, the attorney involved and their pricing structure. A contested divorceA divorce process where the parties are unable to come to an Agreement. In a contested divorce the Court is called upon to adjudicate upon the terms of the divorce. may prove very costly as the litigation process is very time-consuming. An uncontested divorceA divorce process where the parties are able to come to an Agreement regarding all the relevant terms of the divorce., however, is much more predictable and one might expect to pay in the region of R8000.00 – R10 000.00 for the whole process.

 

Should I change my will if I am considering divorce?

Definitely. A divorce is a life-changing process, which may have immense financial consequences to all involved. It is always a good idea to ask your attorney about your will during the first consultation.

 

What are the issues that will be dealt with in divorce?

The issues generally dealt with are:

  1. Assets and Liabilities;
  2. Maintenance for the Parties;
  3. Parental Rights and ResponsibilitiesThe rights and responsibilities of parents as described in section 18 of the Children's Act, 2005. Parental Responsibilities and Rights include: Contact, Care, Maintenance, Guardianship, including:
    1. Contact,
    2. Care,
    3. Guardianship,
    4. Maintenance

 

How long does a divorce take?

It is difficult to predict how long a divorce will take. A contested divorce may take years to finalise. An uncontested divorce usually takes about 2-4 months from start to finish.


 

 

About the Author

Mervyn Vermeulen
Mervyn Vermeulen
administrator

Mervyn Vermeulen is the founder and director of Vermeulen Attorneys. He specializes in Family Law, Labour Law, and Litigation.

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