When Can a Court Grant a Divorce?
The principal ground for divorce under South African law is the irretrievable breakdown of the marriage.
In broad terms, the court must be satisfied that the marriage relationship has reached such a state of disintegration that there is no reasonable prospect of restoring a normal marriage relationship between the spouses.
A spouse does not ordinarily have to prove that the other spouse was morally responsible for the breakdown before a divorce can be granted. The central issue is whether the marriage has irretrievably broken down.
What Is an Uncontested Divorce?
An uncontested divorce occurs where the spouses are able to agree on the consequences of their divorce and the defendant does not oppose the relief sought.
The parties will usually record the terms of their agreement in a written settlement agreement. If acceptable to the court, that agreement can be incorporated into the final divorce order.
Division of Assets
The parties agree how their property and financial affairs will be dealt with, subject to their matrimonial property regime.
Care & Contact
Where children are involved, arrangements concerning care, contact and parental responsibilities and rights can be recorded in the settlement.
Financial Support
Child maintenance and, where applicable, spousal maintenance can be regulated by agreement.
Legal Costs
The settlement can also regulate how the costs of the divorce proceedings will be dealt with.
Why Is an Uncontested Divorce Usually Simpler?
Where the parties have resolved their disputes before the matter proceeds to finalisation, there is generally far less litigation required.
Fewer Disputed Steps
The absence of defended litigation can significantly reduce the number of procedural steps required before finalisation.
Lower Legal Costs
Avoiding prolonged pleadings, discovery, interlocutory applications and trial generally reduces legal costs.
Reduced Hostility
Settlement can allow spouses to resolve the legal consequences of divorce without litigating every disagreement.
Greater Input Into the Outcome
Settlement allows the spouses to negotiate an arrangement rather than leaving disputed issues entirely for a court to decide.
How Long Does an Uncontested Divorce Take?
There is no universal timeframe that applies to every uncontested divorce.
The timing can depend on the court involved, service of the summons, whether there are minor or dependent children, the documentation required, court availability and whether any issue arises before the matter is enrolled.
An uncontested divorce can generally be finalised more quickly than a contested divorce, but no attorney controls the court's administration or available hearing dates. A fixed completion date should therefore not be assumed.
How Does an Uncontested Divorce Work?
Agree on the Terms
The spouses reach agreement on the financial, proprietary and child-related consequences of the divorce.
Prepare the Settlement Agreement
The agreed terms are recorded in a properly drafted settlement agreement for signature by the parties.
Issue the Divorce Summons
Divorce proceedings are formally instituted by issuing summons in the appropriate court.
Serve the Summons
The divorce summons must be formally served on the defendant in accordance with the applicable court rules.
Complete Any Child-Related Requirements
Where minor or dependent children are involved, the required arrangements and Family Advocate processes must be addressed where applicable.
Enroll the Divorce
Once the procedural requirements have been met, the uncontested divorce can be enrolled for hearing.
Divorce Order
The court considers the evidence and documents and, if satisfied that the legal requirements have been met, grants the decree of divorce.
What Is a Contested Divorce?
A divorce becomes contested where the spouses cannot agree on one or more material issues and the defendant opposes the relief sought in the summons.
The dispute does not necessarily concern whether the marriage should end. Often the real disagreement concerns the consequences of divorce.
Division of the Estate
Disputes may arise over property, accrual calculations, excluded assets, ownership or the consequences of the matrimonial property regime.
Care & Contact
Parents may disagree about primary residence, contact, parental responsibilities and rights or other arrangements.
Spousal or Child Maintenance
The amount, duration or existence of maintenance obligations may be disputed.
Pension & Other Interests
Pension interests and other financial consequences can require careful treatment in divorce proceedings.
How Does a Contested Divorce Proceed?
The precise procedure depends on the court, pleadings and issues in dispute, but a defended divorce typically involves several stages before trial.
Divorce Summons
The plaintiff institutes the divorce action and the summons is served on the defendant.
Notice of Intention to Defend
The defendant formally indicates that the action will be defended.
Pleadings
The parties exchange the pleadings setting out the claims, defences and, where applicable, counterclaims.
Discovery
Relevant documents are disclosed in accordance with the applicable procedural rules.
Expert or Child-Related Processes
Depending on the dispute, valuations, expert evidence, Family Advocate involvement or other investigations may become necessary.
Pre-Trial Procedures
The parties identify the issues that remain in dispute and prepare the matter for trial.
Trial
If settlement is not reached, evidence is presented and the court determines the disputed issues.
Can a Contested Divorce Still Settle?
Yes. A divorce that begins as contested does not have to remain contested until trial.
The spouses may continue negotiating throughout the proceedings. If they resolve the outstanding issues, the terms can be recorded in a settlement agreement and the matter may proceed towards finalisation on an unopposed basis.
The fact that divorce proceedings have become defended does not mean that settlement has failed permanently. Many disputes can still be narrowed or resolved before trial.
Why Can Contested Divorces Take So Long?
A defended divorce requires considerably more procedural work than an uncontested matter. The more issues that remain in dispute, the more work may be required before the matter is ready for trial.
Financial Disclosure
Significant financial disputes may require extensive disclosure and analysis of documents.
Expert Evidence
Valuers, actuaries, psychologists or other experts may become relevant depending on the issues in dispute.
Family Advocate Enquiries
Disputes concerning children may require investigation, recommendations or additional child-focused processes.
Trial Availability
Court availability and the time required for a trial can also affect the overall duration of proceedings.
Why Does a Contested Divorce Cost More?
Legal fees generally increase because a contested matter requires substantially more attorney time and procedural work.
Correspondence, consultations, pleadings, discovery, settlement negotiations, interlocutory applications, expert evidence, preparation and trial can all contribute to the overall cost.
Before litigating every disagreement, it is worth identifying which disputes materially affect your legal or financial position. Resolving issues that can reasonably be settled may significantly reduce the scope and cost of the divorce.
What Happens When Children Are Involved?
Divorce proceedings involving minor or dependent children require particular care. The court must be satisfied that the arrangements made for their welfare are satisfactory or the best that can be achieved in the circumstances.
Depending on the matter, the Family Advocate may become involved in considering arrangements concerning the children and may make recommendations to the court.
Where the Child Lives
Arrangements concerning the child's primary residence should be clearly dealt with.
Time With Each Parent
Appropriate contact arrangements may need to address weekends, holidays and other practical considerations.
Financial Support
The child's reasonable financial needs and the parents' respective contributions must be considered.
Parental Responsibilities
Relevant parental responsibilities and rights may also need to be regulated in the settlement or court order.
What Is the Role of the Family Advocate?
The Office of the Family Advocate performs an important function in divorce proceedings involving minor or dependent children.
In appropriate matters, the Family Advocate can conduct an enquiry and provide the court with a report and recommendations concerning the welfare of the children.
Parents may agree with each other, but the court is not required simply to accept an arrangement that is contrary to the interests of the children. The children's welfare remains a separate consideration.
Can Mediation Help During Divorce?
Mediation can provide a structured environment in which spouses attempt to resolve some or all of the issues between them with the assistance of a neutral mediator.
It can be used before or during divorce proceedings and may be particularly useful where the parties need to preserve a workable co-parenting relationship after the marriage ends.
Identify Common Ground
Mediation can help the parties distinguish issues that can be resolved from those that genuinely remain disputed.
Co-Parenting Issues
Parents may use mediation to work towards practical arrangements concerning their children.
Reduce Litigation
Resolving disputes without trial can reduce the amount of contested legal work required.
Settlement Agreement
Agreements reached through negotiation or mediation can ultimately be recorded formally for purposes of the divorce.
What Happens While a Contested Divorce Is Pending?
A contested divorce may continue for a substantial period. In the meantime, disputes can arise about financial support, children or legal costs.
Depending on the court and circumstances, interim relief may be available while the divorce action is pending.
Where urgent interim arrangements are required, obtain advice about the remedies available during pending divorce proceedings. Some issues can be dealt with on an interim basis before the final divorce is decided.
How Is Property Dealt With in Divorce?
The financial consequences of divorce depend heavily on the matrimonial property regime governing the marriage and the particular facts of the case.
In Community of Property
Where the spouses are married in community of property, the joint estate must be dealt with when the marriage ends.
Out of Community With Accrual
The accrual calculation may become an important financial issue when the marriage is dissolved.
Without Accrual
Where accrual is excluded, the spouses generally retain separate estates subject to the applicable law and any other claims that may arise.
Antenuptial Contract
Where an ANC exists, its terms can be critical to determining the proprietary consequences of divorce.
Why Does the Settlement Agreement Matter?
A divorce settlement agreement can regulate significant rights and obligations long after the divorce itself has been granted.
It should therefore be drafted carefully and should reflect the actual agreement between the parties rather than being treated as a mere administrative formality.
Do not sign a settlement agreement simply because you want the divorce finished quickly. Once incorporated into a court order, its terms can have lasting consequences. Understand the property, maintenance and child-related provisions before agreeing to them.
Which Court Deals With Divorce?
Divorce proceedings may be dealt with in the High Court or an appropriate Regional Court with jurisdiction.
Determining the correct court involves jurisdictional rules and should be addressed when the proceedings are prepared.
Divorce papers must be issued in a court that has jurisdiction over the matter. The appropriate court should be established before proceedings are instituted.
Contested or Uncontested: Which Route Applies?
The route is determined primarily by whether the spouses can reach agreement on the consequences of the divorce.
You Agree on the Material Issues
Where a complete settlement can be reached, the divorce can generally proceed without a defended trial.
Material Disputes Remain
Where important issues cannot be resolved, defended proceedings may be required to determine them.
You Agree on Some Issues
Partial agreement can still reduce the number of matters that remain in dispute and require determination.
Agreement May Still Be Possible
Negotiation or mediation may assist the parties in moving from a contested position towards settlement.
The Bottom Line
An uncontested divorce is generally the more efficient route where spouses can reach a fair and workable agreement on the consequences of ending their marriage.
A contested divorce becomes necessary where material disputes remain and cannot be resolved through negotiation or mediation. Even then, settlement remains possible at virtually any stage before the court finally determines the disputed issues.
Divorce litigation should not become conflict for its own sake. The aim is to resolve the legal, financial and child-related consequences of the marriage in a manner that protects your rights and allows the parties to move forward.
Contested & Uncontested Divorce
Danel Campbell Attorneys assists with uncontested and contested divorces, settlement agreements, divorce summonses, disputes concerning matrimonial property, maintenance and child-related issues arising from divorce proceedings.
Explore Family Law Services →This article provides general information about divorce proceedings in South Africa and does not constitute legal advice. The procedure, jurisdiction, financial consequences, child-related requirements and appropriate strategy depend on the circumstances of each marriage and the applicable law and court rules.