Introduction
The South African unopposed divorce is a simplified, faster and cheaper process for couples who wish to dissolve their marriage amicably. An unopposed divorce (often referred to as an uncontested divorce) is when both spouses agree to dissolve their marriage by settlement without any disputes. In this article, we discuss the unopposed divorce process and steps required for an unopposed divorce in South Africa.
Key Steps in the Unopposed Divorce Process:
- Consulting with an attorney
It is advisable that the couple consults with their individual attorneys prior to initiating the divorce process. The couple may use the same/one attorney that is impartial and unbiased. Sound divorce advice ensures that the couple fully understand their individual rights and obligations.
- Drafting the Summons
The spouse initiating the divorce (referred to as the “plaintiff”) must prepare summons, which outlines the case/basis for the divorce such as the grounds for divorce, division of assets, pension funds, child maintenance (if applicable), and arrangements in respect of the primary residence of the minor children (if applicable).
- Personal Service by the Sheriff
The summons is then served on the other spouse (referred to as the “defendant”) by the sheriff. The summons must be served on the defendant personally (i.e. they must receive such summons personally). The summons cannot be served on someone else on behalf of the defendant. Thereafter, the sheriff will prepare a return of service (i.e. proof of service/delivery), which document is crucial as it confirms that the defendant has received the summons and is aware of the divorce proceedings.
- Settlement Agreement
The couple must reach a settlement agreement that addresses all aspects of the divorce, including the division of assets, liabilities, pension funds, spousal maintenance (if applicable), children maintenance (if applicable), and primary residence of the minor children (if applicable). Where there are minor children involved, a parental plan would have to be drafted and signed by both parties. The parental plan must further be endorsed by the offices of the Family Advocate. The settlement agreement together with the parental plan should be drafted with the assistance of a legal practitioner to ensure that they comply with the divorce laws.
- Filing the Documents with the Court
Once the summons have been served, the settlement agreement and parental plan drafted, finalised and signed, the necessary documents, including the summons and sheriff’s return of service, are filed (submitted and placed in the file) in court. The court will then review the documents and provide a date for hearing.
- Court Appearance
On the date of hearing, the magistrate or judge will confirm the contents of the settlement agreement and whether both parties wish to conclude settlement and dissolve their marriage. Once the magistrate or judge is satisfied with the submitted documents, they will order a decree of divorce.
- Decree of Divorce
Upon approval by the court, a decree of divorce is issued, officially dissolving the marriage. The divorce is then registered with the Department of Home Affairs.
Conclusion
The unopposed divorce process in South Africa provides a more straightforward and alternative for couples seeking to dissolve their marriage in an amicable manner. By engaging with a legal practitioner, couples can navigate the process with minimal conflict and move forward with their lives.
Disclaimer: this article is for general public information and use. It is not to be considered or construed as legal advice. Each matter must be dealt with on a case-by-case basis and you should consult an attorney before taking any action contemplated herein.
Written by: Mohau Ketshegofaditswe Ledwaba
Telephone: 010 226 9815
Email: mohau@mkledwaba.co.za
