How does one get divorced in South Africa? Adv. Muhammad Abduroaf unpacks the legal process in a simplified manner.

Written by Adv. Muhammad Abduroaf – LL.B LL.M Advocate of the High Court of South Africa

Legal Advice on getting divorced

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. If, however, you would like to know the general procedures on how to go about in 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 exceptions, strikeouts, compelling compliance, service addresses etc. Other matters incidental to divorce proceedings, e.g. 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 do the divorce yourself.

Summons and Particulars of Claim

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 may also approach the Magistrate’s Court. Each court has its own rules and procedures. You should then draft a document called “particulars of claim” outlining relevant matters concerning the marriage, children, reasons for wanting a divorce and what do you want the court to grant you in a divorce order. This 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. To do this, make three (3) copies of your set of documents (summons and particulars of Claim) and have it issued at court. Other documents may have to be attached as well.

Issuing and Service of the Divorce Summons

Once you are at the 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 write 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) and take it to the sheriff which 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 keep for your file and records.

Notice of intention to defend the divorce

Once the sheriff served the 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 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 as outlined next.

Plea to particulars of claim in divorces

Once you received notice of your spouse’s intention to defend the divorce, about a month later, your spouse or his or attorney should serve and file a plea. The plea should outline which parts of your particulars of claim your spouse agree (or disagree) with which would give everyone an indication of what to prove at court.

Counter Claim in Divorce Actions

Your spouse might want to file a counter-claim. In the same way, which you outlined your case as to what you want from the court and the reasons therefore in your particulars of claim, your spouse can file on you as well a counter-claim. A counter-claim might still be filed if your spouse agrees to a divorce, but maybe wants primary care of the children, but in your particulars of claim, you asked for primary care. You should then within 10 (ten) days plead to the counter-claim in the same manner in which your spouse pleaded to your particulars of claim.

Discovery in divorce cases

While you are waiting for a trial date, and way before the trial, 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, deeds etc, and which you or your spouse might want to make use of at trial. Once you received these schedules you may inspect and request copies of the documents.

Obtaining a trial date for the divorce

Once you received the plea, without a counter-claim, or have pleaded to your spouses counter-claim, you should then approach the clerk/registrar of the court for a trial date. This you or your spouse may do. Please note that certain courts may have other procedures that need to first be adhered to before obtaining a trial date. For example pre-trial conferences before a judicial officer etc.

Divorce day / Trial date (Finalising the Divorce)

If your spouse does not defend the divorce within the period mentioned above, 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 ensure. During the trial, each party will prove his or her case. Witnesses will be called and at the end, the Magistrate or Judge will deliver the judgment. Best of luck, and please, don’t take my word, contact a legal practitioner should you decide to get divorced. Advocate Muhammad Abduroaf (Cape Town | Western Cape LL.B & LL.M (Master of Laws) Constitutional Litigation – Advocate of the High Court of South Africa – Member of the Legal Practice Council of South Africa We are certain that you found the above article useful and interesting. Please consider sharing it on the share buttons below. They include Facebook, Twitter, LinkedIn, WhatsApp, Gmail and more. Someone may find it useful as well. Should you require business advice or services, feel free to click on these links: Business SA | Private Legal | Envirolaws    

How does one get divorced in South Africa? Adv. Muhammad Abduroaf unpacks the legal process in a simplified manner.

Written by Adv. Muhammad Abduroaf – LL.B LL.M Advocate of the High Court of South Africa

Legal Advice on getting divorced

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.

If, however, you would like to know the general procedures on how to go about in 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 exceptions, strikeouts, compelling compliance, service addresses etc. Other matters incidental to divorce proceedings, e.g. 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 do the divorce yourself.

Summons and Particulars of Claim

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 may also approach the Magistrate’s Court. Each court has its own rules and procedures.

You should then draft a document called “particulars of claim” outlining relevant matters concerning the marriage, children, reasons for wanting a divorce and what do you want the court to grant you in a divorce order. This 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.

To do this, make three (3) copies of your set of documents (summons and particulars of Claim) and have it issued at court. Other documents may have to be attached as well.

Issuing and Service of the Divorce Summons

Once you are at the 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 write 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) and take it to the sheriff which 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 keep for your file and records.

Notice of intention to defend the divorce

Once the sheriff served the 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 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 as outlined next.

Plea to particulars of claim in divorces

Once you received notice of your spouse’s intention to defend the divorce, about a month later, your spouse or his or attorney should serve and file a plea.

The plea should outline which parts of your particulars of claim your spouse agree (or disagree) with which would give everyone an indication of what to prove at court.

Counter Claim in Divorce Actions

Your spouse might want to file a counter-claim. In the same way, which you outlined your case as to what you want from the court and the reasons therefore in your particulars of claim, your spouse can file on you as well a counter-claim.

A counter-claim might still be filed if your spouse agrees to a divorce, but maybe wants primary care of the children, but in your particulars of claim, you asked for primary care.

You should then within 10 (ten) days plead to the counter-claim in the same manner in which your spouse pleaded to your particulars of claim.

Discovery in divorce cases

While you are waiting for a trial date, and way before the trial, 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, deeds etc, and which you or your spouse might want to make use of at trial.

Once you received these schedules you may inspect and request copies of the documents.

Obtaining a trial date for the divorce

Once you received the plea, without a counter-claim, or have pleaded to your spouses counter-claim, you should then approach the clerk/registrar of the court for a trial date. This you or your spouse may do.

Please note that certain courts may have other procedures that need to first be adhered to before obtaining a trial date. For example pre-trial conferences before a judicial officer etc.

Divorce day / Trial date (Finalising the Divorce)

If your spouse does not defend the divorce within the period mentioned above, 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 ensure. During the trial, each party will prove his or her case. Witnesses will be called and at the end, the Magistrate or Judge will deliver the judgment.

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

Advocate Muhammad Abduroaf (Cape Town | Western Cape LL.B & LL.M (Master of Laws) Constitutional Litigation – Advocate of the High Court of South Africa – Member of the Legal Practice Council of South Africa

We are certain that you found the above article useful and interesting. Please consider sharing it on the share buttons below. They include Facebook, Twitter, LinkedIn, WhatsApp, Gmail and more. Someone may find it useful as well.

Should you require business advice or services, feel free to click on these links:

Business SA | Private Legal | Envirolaws

 

 

Related Post

Could you kindly enlighten me on the meaning of a Trust Account Advocate in South Africa? I would greatly appreciate your clarification on this matter. 

Trust Account Advocate – A relatively new concept

The concept of a Trust Account Advocate is relatively new in South Africa. Previously, all advocates were referral advocates. What this meant is that they could only receive work from an attorney. There were some exceptions. A Trust Account Advocate, on the other hand, can obtain work directly from members of the public. There is, therefore, no need for an instructing attorney.

What is an advocate?

An advocate, just as an attorney, is a professional who is qualified and licensed to practice law, advise clients, and represent them in legal matters. They are also responsible for upholding the law and protecting the rights of their clients. As you can see below, there is a distinction between attorneys and advocates. And between referral advocates and Trust Account Advocates.

What are the various forms of legal practice in South Africa?

There three forms of legal practice in South Africa. This is according to the Legal Practice Act 28 of 2014. Here, section 34 of the Legal Practice Act applies which states: 34 Forms of legal practice (1) An attorney may render legal services in expectation of any fee, commission, gain, or reward as contemplated in this Act or any other applicable law, upon receipt of a request directly from the public for that service. (2) (a) An advocate may render legal services in expectation of a fee, commission, gain or reward as contemplated in this Act or any other applicable law-      (i) upon receipt of a brief from an attorney; or     (ii) upon receipt of a request directly from a member of the public or from a justice centre for that service, subject to paragraph (b). (b) An advocate contemplated in paragraph (a) (ii) may only render those legal services rendered by advocates before the commencement of this Act as determined by the Council in the rules, if he or she-      (i) is in possession of a Fidelity Fund certificate and conducts his or her practice in accordance with the relevant provisions of Chapter 7, with particular reference to sections 84, 85, 86 and 87;     (ii) has notified the Council thereof in terms of section 30 (1) (b) (ii). (c) An advocate may render legal services in criminal or civil matters in expectation of a fee, commission, gain or reward as contemplated in this Act or any other applicable law upon receipt of a request directly from a justice centre for that service, in which event the provisions of paragraph (b) do not apply.

What type of advocate is Advocate Muhammad Abduroaf

Advocate Muhammad Abduroaf is a Trust Account Advocate. He may, therefore, obtain work directly from the public. When clients pay him in advance for legal services, they pay the fees into his Trust Account.

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