DIY Law In South Africa: Divorcing Without A Lawyer

Going through a divorce can be really tough. This is what experts found out using a scale made by doctors Holmes and Rahe in the 1960s. Since then, more and more people are getting divorced worldwide, as shown by the United Nations.

But numbers can’t show how much pain divorce can bring. The process of ending a marriage can be really hard and also cost a lot of money.

Many South Africans who are contemplating divorce, may not be aware that it is possible to do so without an attorney.

In circumstances where a do-it-yourself (DIY) divorce is advisable, both parties can end up saving thousands by not having to rope in legal representation.

THIS SECTION EXPLORES DIY DIVORCES IN DETAIL: 

1. How you are married influences how you will get divorced

In South Africa, a marriage is recognised as either a civil marriage, a civil union, or a customary marriage. Civil marriages come to an end using the Divorce Act, while customary law marriages dissolve using the Divorce Act and additional conditions as may be relevant.

2. Your reasons determine whether you are legally entitled to divorce

You do not need your spouse’s permission to get a divorce.

According to the Divorce Act, spouses may divorce once their relationship has irretrievably broken down, or when one has cheated on the other.

A South African Government website’s article, How to get divorced, explains that a marriage will have broken down irretrievably once the spouses can prove that they no longer live together and that there is no chance of resolving their differences.

Additional, less prevalent grounds for divorce include when one party has been imprisoned and declared a habitual criminal or if either party has been in a mental health facility for at least two years, with no real prospect of recovery. Another is if one of the spouses has been unconscious for at least six months, without hope of recovery.

3. To get, or not to get, legal advice

South Africans who want to get divorced are usually advised to get legal assistance. This does not mean, however, that it is impossible to get divorced without having to incur legal fees. Ultimately, the decision on whether or not to get an attorney is up to you.

According to the abovementioned article on the South African Government’s website, DIY divorce may be an option when the divorce is:

• uncontested,
• when it is simple,
• when the parties have been married for a short time,
• or when they do not have substantial assets to divide.

It may also be the preferable option when there are no disputes regarding any children.

If you realise that you need legal assistance, but do not have the funds, you may qualify for free legal advice offered by the Legal Aid Board. You may also approach your nearest university’s law faculty to determine whether you qualify to benefit from their assistance.

4. DIY divorce in South Africa: Where to begin

If you prefer not to get lawyers involved, you will need to meet with the registrar of the divorce court in your area. Explain that you seek a divorce, and request assistance. The registrar will explain the process to you and indicate which documents you need to start the process.

5. Documents you will need when applying for a divorce

You will need certified copies of:

• Your South African identity document,
• your marriage certificate,
• your children’s birth certificates (if applicable),
• and your antenuptial agreement (if applicable).

The registrar of the court will indicate whether any additional documents are required. With the registrar’s help, you will fill out the summons which contains the reasons for your divorce, personal details, and details on custody of children and how property will be divided.

6. Issuing of ‘divorce papers’ or summons

The registrar then opens a court file, assigns a case number to your application for divorce, and formally issues the summons.

The term ‘divorce papers’ is sometimes used to describe the registrar-issued summons and your divorce application, which collectively constitute the divorce application bundle. Once these documents are available, you will need to make at least two sets of photocopies.

7. Take the divorce papers to the sheriff for delivery

Your next step is to deliver the original copies of your divorce application bundle to the sheriff. If you do not know how to get hold of the sheriff, the court registrar will be able to point you in the right direction. The sheriff will deliver your spouse’s set of documents during a process called ‘serving’.

On these documents, your spouse will be given a deadline before which he or she must respond or counter-claim.

8. Your spouse responds

If your spouse agrees to the terms of the application bundle and does not file any counterclaim, your divorce may be added to the court roll for hearing.

If you and your spouse have been able to enter into an agreement facilitating the division of assets, and access to and care of minor children, such an agreement may be made an order of court. Divorces, where the parties agree on such settlement agreements, tend to get finalized faster.

If your spouse disagrees with the contents of the summons, they will file a counterclaim and submit a document with their version (‘defence’). You may need to respond to their counterclaim by filing a document known as your ‘reply’. Cases like these are called ‘contested divorces’ and parties involved usually benefit from specialist legal advice.

Once all the necessary documents have been exchanged, the matter will be enrolled for trial.

9. Your day in court

On the day of trial, you should be at the court building on time. Regional Court proceedings start at 09:00, and High Courts typically start at 10:00.

Ensure that you have your identity document, your marriage certificate, your children’s birth certificates, and your antenuptial agreement with you. Before your court date, ask the registrar to confirm which of these should be in their original form.

You may be called upon to address the court, so be ready to do so if needed. If you are a party to a trial where witnesses are set to testify, ensure that they are at court as well.

10. The divorce is finalized

After having considered all the information placed before him or her, the presiding officer will make an order. If appropriate, your divorce application will be granted. Ensure that you read and understand the contents of the order.