A divorce action is established by the issuing of a summons. You can divorce in either the Regional Court of the Magistrate Court having jurisdiction in your area or in the High Court. To start the divorce process, you need to serve a summons.
A court has jurisdiction in a divorce action if one or both parties are:
- domiciled in the area of jurisdiction of the court on the date on which the action is instituted; or
- ordinarily resident in the area of jurisdiction of the court on the said date and has/have been ordinarily resident in South Africa for a period of not less than one year immediately prior to that date.
When you want to apply for a divorce, ensure that you have your official South African ID and your marriage certificate. Any other documents needed will be provided by the court or law firm. When you apply for a divorce, you will need to get a summons, a document that orders you to be at court. A divorce summons is unique in that it must be served personally on the defendant by the sheriff of the court. There may also be a divorce settlement attached to the summons.
There are 2 types of divorce – uncontested (unopposed) divorces and contested (opposed) divorces. Uncontested divorces are easier because both parties agree to the divorce and the divorce settlement.
Whether you have a contested or uncontested divorce, you will need to follow these steps:
- Visit the High Court or a Family Court in your area.
- Ask a clerk for help with a summons
The summons which will have the reasons for your divorce, personal details, details on custody of children and property.
- You will need to attach a stamp and pay for it
- You will need to make copies and issue the documents to the clerk
- You will need to give the original copies to the sheriff of the court
The clerk can help you find a sheriff.
- The sheriff will deliver the summons to your partner
The summons will have a date by which they can counter-claim.
- You, the plaintiff, will appear in court
If your spouse agrees to the terms and does not counterclaim, your divorce will be added to the high court roll and the plaintiff (the person making the case) will appear in court. A judge will ask questions to confirm information and may end your marriage.
If your partner, however, disagrees with the terms in the summons, they’ll counterclaim. He/she will have to create a document with their defence. You will appear in court and may need witnesses to help your case. The judge will listen to both sides and conclude your marriage based on the information they’ve read and heard.
Read related resource: How to get a cheap divorce.