Divorce Lawyer
divorce lawyer

DIVORCE LAWYER

A divorce lawyer is an attorney that specializes in the area of family law. Family Law is not limited to divorce actions, it incorporates many other facets of family related matters, which include child maintenance, relocation of a minor child or children, and care and contact arrangements of a minor child or children.

DIVORCE PROCEDURE

The procedure of getting a divorce in South Africa is generally quite straightforward, however the process can be lengthy and arduous when a divorce is opposed and acrimonious. Divorce actions are instituted either in the High Court, or in the Regional Court, by way of issuing a Summons. The person bringing the divorce action is referred to as the Plaintiff. Divorce actions in the High Court, whilst more costly than divorce actions in the Regional Court, are preferable as the process is far more efficient. Once the Summons has been issued at Court, the Sheriff is required to effect personal service of the Summons on the Defendant.

The process after the Summons has been issued and served varies, depending on whether a divorce is opposed by the Defendant, or unopposed by the Defendant. Thereafter, the procedure of a divorce action goes through a number of stages namely:

  • The Pleadings:

Pleadings are the formal documents required for a divorce and include the Summons, Particulars of Claim, Notice of Intention to Defend, if the matter is opposed, a Plea, a Claim-in-Reconvention and a Plea to the Claim -in-Reconvention. After the Plea to the Claim-in-Reconvention has been filed and served, the pleadings are deemed to be closed.

  • The Discovery Process: 

The Discovery process entails each party requesting that the other party furnish documentation, and other material evidence, which that party intends to rely on at Trial. The parties are given an opportunity to read and consider the documents before Trial. In cases where a party fails, refuses or neglects to furnish documentation requested of that party, Subpoenas can be issued to the relevant organisation, banking institution or professional to furnish the documentation.

  • Further Discovery or Further Particulars:

If a party is of the opinion that the other party is in possession of other relevant documents, or evidence, that party may issue a Notice to the Court to that effect requesting that party to further discover.

  • Pre-Trial Conference:

A Pre-Trial Conference is an informal conference which takes place after the close of the pleadings. The purpose of a Pre-Trial Conference is to narrow the issues in dispute and to determine whether settlement of the matter is possible.

  • Application for and Set Down of Trial Date:

An application for a Trial date is generally made by the Plaintiff to the Registrar of the High Court, who will then allocate a date.

If a divorce action is unopposed then the Plaintiff may make an application for and set down of a Trial date after the time period within which the Defendant had to file and serve a Notice of Intention to Defend the action, has lapsed.

  • Trial:

The Trial procedure entails both parties legal representatives, making representations and submissions to the Court as to the issues which are in agreement and those issues which are in dispute. In High Court matters, if a legal representative does not have a right of appearance in the High Court an Advocate will be instructed to represent the party in Court.

  • Judgment:

At the conclusion of the Trial, a judgement will be handed down as to the decision which the Trial Judge has made.

THE REQUIREMENT FOR MEDIATION IN THE DIVORCE PROCEDURE

In accordance with the uniform Rule of Court, as of the 9th March 2020, a Plaintiff is now required to invite and give Notice to the Defendant as to whether the Plaintiff agrees or opposes mediation of the issues at hand, and setting out the reasons therefore. The premise for such addition to the divorce process is to try and settle matters in a more cost effective and speedy manner.


Divorce lawyers are particularly equipped to provide expert advice on divorces and how to deal with the specific issues that arise in divorces. They are also aware of what the procedural requirements or restrictions are for the divorce process to get it to trial and be ready to argue. Divorce lawyers are responsible primarily for drafting the divorce papers, drafting Rule 43 applications or other applications which may need to be brought in your matter, addressing legal letters to deal with or record certain issues, drafting settlement agreements and parenting plans which are legally binding and complete.

Divorce lawyers that have specialised in divorce law, as opposed to lawyers who perform the odd divorce from time to time, are an invaluable resource, as they can provide you with far more accurate advice on how to deal with your divorce based on their expertise and their experience of previous divorces and similar situations. Divorce lawyers have vast knowledge of the decisions which Judges are more likely to make on any particular issue in the divorce, and how certain actions tend to be viewed by the Courts. Divorce lawyers know what Judges are looking for and what types of documentation or evidence will be important to a favourable outcome for you.

Make an appointment to consult with a divorce lawyer, and prepare necessary and useful documentation which your divorce lawyer may need during that consultation or they request. This includes the original divorce order (or a copy), copies of ID documents/birth certificates, copies of your bank statements and documentary proof of your assets and liabilities, copies of your salary slips, a breakdown of your monthly income and expenditure, any documents which show your spouse’s assets, liabilities, income or expenditure, and any documentary proof of any particular issues affecting your divorce or which you want to discuss/query with your divorce lawyer. If you are missing any documents, you do not have to delay the consultation. Your divorce lawyer will still be able to advise you on the interim information you can provide them.

Divorces are final on the date that the Judge grants the decree of divorce which will be included in the Final Divorce Order. Although the Final Divorce Order will need to be typed up, signed and stamped before it can be provided to you, which can take several weeks, you are divorced from the day that the Judge heard the matter and granted the decree of divorce in Court. Even if there is an appeal by the other party, appeals are limited to dealing with the issues in dispute in the divorce that we decided by the Judge and not the decree of divorce itself. The Court itself will inform the Department of Home Affairs to alter their records to reflect the divorce, but administrative errors can still occur. Third parties may still require the Final Divorce Order as proof of the divorce, but you can ask your divorce lawyer to draft a letter confirming that you are divorced and you can provide the third parties with a copy of any Settlement Agreement while you wait for the Final Divorce Order.

Divorces can take anywhere between a few months to many years to be finalised, depending on the specific circumstances of the matter. The earlier parties can settle the divorce between them, or settle particular issues in the divorce to reduce the number of days for any trial, the faster the process is to get a Final Divorce Order. If the parties settle before instituting the divorce, or shortly after, then it will only take a few months to allow for enough time for the mandatory procedural requirements in the Divorce Act and the Court Rules to be followed. If there are multiple issues in dispute that the parties cannot agree on before the trial and/or complex issues which require expert evidence and more time to be spent at trial arguing the matter, then the number of days required for the trial will increase and the earliest dates the Court can assign for trial will be much later, including a year or more after request.

Before a divorce is finalised, you can be entitled to spousal maintenance if your earning capacity is less than that of your spouse. This includes being retained on the Medical Aid. The Children’s Act sets out the parental responsibilities and rights applicable to divorces involving minor children, namely care, contact, guardianship and maintenance. Rule 43 proceedings are proceedings in divorce actions which you can bring to obtain a Court Order early in the divorce process to enforce your rights and be granted interim relief on these types of issues. In Rule 43 applications you can request an order that includes a contribution be made by your spouse towards your legal costs and orders for your spouse to continue to pay certain expenses so that you aren’t forced to incur these. You may also be entitled to certain proprietary claims even before the divorce is finalised, depending on the matrimonial property regime, even if this is just about being placed into possession of your own personal items or assets, in particular your personal effects.

Consult with a divorce lawyer who can provide you with specific expert advice on your particular situation so that you can take the best approach in the matter. You will provide your divorce lawyer with the details for you and your spouse, the date, time and place of the marriage and details of the matrimonial property regime (together with the marriage certificate or a copy), the details of any minor children, your instructions for care, contact and child maintenance for any minor children, your instructions for any spousal maintenance and the details of any other specific issues to your situation for them to draft the divorce summons. Once the divorce summons has completed (which includes an Annexure A document for you to sign before a commissioner of oaths if there are any minor children in the matter), it is sent to be issued by the Court who will assign it with a case number. The divorce summons is then sent for service on your spouse by the Sheriff, who must personally serve the document as required by the Divorce Act. Once this has been served, the clock begins running on the procedural aspects and requirements of the divorce.

After separating, and before the divorce, you should consult with your divorce lawyer and follow their advice as much as possible, as you do not want to undermine your own case. If your divorce lawyer specifically tells you to do something, or not do something, going forward in the divorce proceedings then there is a reason for it. The most frequent issues encountered in divorces are where the children are used as pawns against the other person, by refusing to pay maintenance or creating issues with care and contact, or when one spouse tries to divest themself of assets to avoid the proprietary consequences of the divorce. You should also be cautious about attempts by your spouse to reconcile, as these could be genuine or these could be done with the intention of undermining particular claims by you in your divorce papers, avoid/remove their own issues or be opportunistic to try and effectively reset matters if it becomes clear that they are suffering losses in the divorce. It should also be noted that you do not have to go into any details, if the divorce is settled or proceeds on an unopposed basis, for the breakdown of the divorce if you and your spouse have been separated and living apart from one another for a continuous period of one year or more, as the Court will accept that the marriage has irretrievably broken down on this basis alone.

SOME GENERAL RULES OF THUMB:

  • don’t use the children as pawns against your spouse in any manner;
  • don’t prevent your spouse from having appropriate contact (without actual good cause for why this would endanger the children) even if your spouse won’t pay maintenance;
  • don’t refuse to pay maintenance, even if your spouse is denying you contact;
  • don’t refuse to pay any maintenance whatsoever (including spousal maintenance) pending the finalisation of the divorce, even if you cannot contribute much, as you must try and at least contribute something instead of nothing;
  • don’t interfere with your spouse at their home or work now that you are separated;
  • don’t refuse reasonable requests by your spouse to access the home to collect their own items or to value a property, particularly if they are a co-owner;
  • don’t hide or get rid of assets, particularly as this is bound to be discovered and your actions will then undermine your own case before a Judge (and your spouse can still have a proprietary claim post-divorce if they discover this);
  • don’t refuse to co-operate with the other side in the divorce process, including opportunities to try and settle the divorce.

For direct answers to your specific personal questions, please contact us directly.

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