SOUTH AFRICA Law and Practice Contributed by: Beverley Clark, Jana van Breda, Elmarie Erasmus and Lauren Christie, Clarks Attorneys
1. Divorce 1.1 Grounds, Timeline, Service and Process Grounds for Divorce In South Africa, there is a “no fault” divorce system. The grounds for divorce apply to all marital relation ‑ ships, including monogamous heterosexual mar ‑ riages, monogamous same-sex marriages, and both monogamous and polygamous marriages recognised under African custom. The Divorce Act 70 of 1987 (the “Divorce Act”) pro ‑ vides the following two no-fault grounds for divorce. • Irretrievable breakdown of the marriage relationship (Section 4) – the court must determine on evidence that the relationship has deteriorated to a point where restoration is no longer possible. In practice, if either of the parties believes the marriage is over, the court will not refuse to grant a divorce. • Mental illness or continuous unconsciousness of one spouse (Section 5) – there must be no reason ‑ able prospect of recovery. Service, Process and Timeline in Obtaining a Decree of Divorce A period of separation is not a legal prerequisite for filing for divorce. However, if the parties have been separated for at least a year before initiating proceed ‑ ings, this serves as rebuttable evidence of an irretriev ‑ able breakdown (Section 4 (2)(a) of the Divorce Act). The procedure to be followed and the timeline to final ‑ ise a divorce vary depending on whether the divorce is unopposed (uncontested or already settled between the parties) or opposed (contested). In both cases, one spouse (the plaintiff) initiates the process by serv ‑ ing a combined summons on the other spouse (the defendant). This document must be personally deliv ‑ ered by a sheriff of the High Court. Subsequent docu ‑ ments need not be served by the sheriff. If the defendant resides outside South Africa, the plaintiff must bring an application to court for con ‑ sent to serve the summons outside the country by way of edictal citation. If the defendant’s whereabouts are unknown and all reasonable efforts to locate them have failed, the court may authorise alternative meth ‑
ods of service (eg, email or WhatsApp), pursuant to an application to court for substituted service. After the summons has been served, the defendant has ten court days to notify the court and plaintiff of their intention to defend the divorce if both parties live within the court’s jurisdiction, or one month if the defendant resides outside the jurisdiction. Uncontested Divorces When the plaintiff and defendant have entered into a settlement agreement prior to the divorce summons being issued, the divorce action will proceed on an unopposed basis and a decree of divorce will (in most cases) be granted incorporating the settlement agree ‑ ment. If a summons is issued (with or without a settlement agreement having been reached) and the defendant does not defend the action within the allowed time and proper service is proven, the plaintiff can request a court hearing for a decree of divorce to be granted by default. The court will grant a divorce order if it is satisfied that: • the grounds for divorce have been met; • the summons was properly served on the defend ‑ ant; and • the defendant had adequate time to file an inten ‑ tion to defend the action and did not do so. Divorces that proceed on an unopposed basis can be finalised within three to four months from the date the summons is issued. Contested Divorces Contested divorces generally follow four stages:
• pleadings; • discovery; • pre-trial; and • trial. Pleadings
After giving notice of their intention to oppose, the defendant has 20 court days to file their plea and counterclaim. The plaintiff then has 15 court days to respond. Pleadings close thereafter. In certain juris ‑
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