SOUTH AFRICA Law and Practice Contributed by: Beverley Clark, Jana van Breda, Elmarie Erasmus and Jessica Clark, Clarks Attorneys
Clarks Attorneys Block A2 34 Impala Road
Chislehurston Johannesburg 2196 South Africa Tel: +27 11 783 1066 Email: admin@clarks.co.za Web: www.clarksattorneys.co.za
1. Divorce 1.1 Grounds, Timeline, Service and Process Grounds for Divorce In South Africa, there is a “no fault” divorce sys - tem. The grounds for divorce apply to all marital relationships, including monogamous hetero - sexual marriages, monogamous same-sex mar - riages, and both monogamous and polygamous marriages recognised under African custom. The Divorce Act 70 of 1987 (the “Divorce Act”) provides the following two no-fault grounds for divorce. • Irretrievable breakdown of the marriage rela - tionship (Section 4) – the court must deter - mine on evidence that the relationship has deteriorated to a point where restoration is no longer possible. • Mental illness or continuous unconsciousness of one spouse (Section 5) – there must be no reasonable prospect of recovery.
Service, Process and Timeline in Obtaining a Decree of Divorce A period of separation is not a legal prerequi - site for filing for divorce. However, if the parties have been separated for at least a year before initiating proceedings, this serves as rebuttable evidence of an irretrievable breakdown (Section 4(2)(a) of the Divorce Act). The procedure to be followed and the timeline to finalise a divorce vary depending on whether the divorce is unopposed (uncontested) or opposed (contested). In both cases, one spouse (the plain - tiff) initiates the process by serving a combined summons on the other spouse (the defendant). This document must be personally delivered 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 consent to serve the summons outside the country by way of edictal citation. If the defend - ant’s whereabouts are unknown and all reason - able efforts to locate them have failed, the court may authorise alternative methods of service (eg, email or WhatsApp), pursuant to an appli - cation to court for substituted service.
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