In my experience as a family law attorney, my client’s mostly want to know what the process of a divorce entail and what they need to start the process.  This article is therefore a summary of the divorce process and guidelines on what is needed to start the process.  First and foremost, you need to find a family law attorney in your area and make an appointment. Remember to ask the receptionist or legal secretary what the first consultation fee will be, because the fee is usually payable on the day of the first consultation.  

On the day of the consultation take the following documents with you: 

a. Your original marriage certificate;
b. A copy of your identity document as well your spouse’s;
c. If you have minor or dependent children, copies of their birth certificates;
d. If you are married out of community of property, a copy of your ante-nuptial agreement;
e. Should you be married in community of property, it is important to inform your attorney of all of the assets and liabilities that form part of your joint estate. Make a list of all your immovable property and movable property and provide detail of same.  This will include motor vehicles, motorcycles, caravans, trailers, furniture and household goods. 
f. Where you are married in community of property or out of community of property with inclusion of the accrual, it is wise to also provide details of pension or provident fund interest, retirement annuities, membership in a close corporation, shares in a company, investments and cash in your savings account;
g. As mentioned above liabilities must also be provided, seeing that debt can influence division of the joint estate and calculation of the accrual;
h. If you are employed, three months bank statements and three months’ salary advises. Also a list of your personal and household expenses;
i. You will also need a list of the minor children’s or child’s expenses to determine the  maintenance need for the children or child;
j. The list above is only a guideline and your attorney will inform you of any other documentation needed. 

Naturally you will be requested to pay a deposit to start the divorce process and to cover expenses such as the Sheriff, copies, courier costs in some cases and the initial drafting of the divorce summons and supporting documents. 

Your attorney will either institute the divorce action in the Regional Court in your area or the High Court and because you institute the action, you will be the Plaintiff.  The Court will issue the summons with a case number and your attorney will request the Sheriff of the Court to serve the summons on your husband/wife, who will be the Defendant in the action. The Defendant must receive the summons personally, which is called personal service, seeing that a divorce affects a person’s status. Once the Defendant has received the summons he/she has 10 court days (weekends and public holidays excluded) to defend the action and give notice of his/her intention to do so. Should no Notice to defend be received, the divorce can proceed on an undefended basis and as the Plaintiff, you will obtain a decree of divorce based on the claims you included in your summons, called prayers. 

Should you and Defendant elect to settle all your disputes in the divorce, a settlement agreement can be drafted and signed by both parties and same will be made an Order of Court on the day of the divorce.  This will also be an undefended divorce and only the presence of the Plaintiff is required during the divorce for testimony. 

Should the Defendant defend the action, the divorce will proceed on a defended basis. This means the divorce will be litigated and in this unfortunate event, the parties will have to fund the litigation. Litigation is extremely expensive and should be avoided as far as possible. If the parties cannot settle their disputes, unfortunately litigation is the only option.  In most cases the litigant with the smaller purse will launch a Rule 43 application in the High Court or Rule 58 application in the Regional Court, to obtain an interim order for primary care of the minor children, contact rights, an interim maintenance order and a contribution towards his/her legal costs in the divorce action. The aforementioned application is however not always your best option, as each individual’s facts should be taken into consideration.  
Contrary to popular belief any divorce can be settled and one should also attempt to resolve all disputes amicably. Unfortunately most litigants in divorces only realise this when they have spent thousands of rand fighting.  

Kindly do contact me, should you have any questions or need assistance in this regard.  My email address is sue-mari@dupwest.co.za.