How to start a divorce

Divorce can be a complex and emotionally challenging process. This guide will help you understand the steps involved in starting a divorce in South Africa, based on the legal procedures and requirements in the country. We will break down the process into easy-to-understand steps, covering the necessary legal aspects and practical considerations. Consulting with Pauw Attorneys, a reputable law firm specialising in family law, can ensure that your divorce process is handled professionally and efficiently.

1. Understand the Grounds for Divorce

In South Africa, there are three primary grounds for divorce:

• Irretrievable Breakdown of the Marriage: The most common ground, where one or both parties feel that the marriage has broken down irretrievably and there is no chance of reconciliation. Evidence can include prolonged separation, refusal of marital responsibilities, or serious communication issues.
• Mental Illness or Continuous Unconsciousness: If a spouse has been mentally ill for at least two years or continuously unconscious for at least six months. Medical reports and expert testimony are often required.
• Adultery: While not a ground for divorce itself, adultery can be evidence of the irretrievable breakdown of the marriage and can influence decisions on settlement agreements and child custody.

2. Choose the Type of Divorce

There are two main types of divorce in South Africa:

• Contested Divorce: Occurs when spouses cannot agree on one or more aspects of the divorce, such as division of assets, child custody, or maintenance. This type of divorce can be lengthy and costly, often involving multiple court appearances, mediation, and possibly a trial.
• Uncontested Divorce: Occurs when both parties agree on all aspects of the divorce. This type is quicker, less expensive, and less stressful. It involves drafting a settlement agreement that both parties sign, and it can be finalized with a brief court appearance.

3. Consult with a Family Law Attorney at Pauw Attorneys

While it is possible to handle a divorce on your own, consulting with a family law attorney at Pauw Attorneys is highly recommended, especially if the divorce is contested. An attorney can help you understand your rights, draft legal documents, and represent you in court if necessary.

What to Prepare Before Seeing a Lawyer

Before your first meeting with a lawyer at Pauw Attorneys, it is helpful to gather and prepare the following documents and information:

• Personal Identification: ID documents, marriage certificate, and any prenuptial agreements.
• Financial Documents: Bank statements, tax returns, salary slips, and information on debts and assets, including pension funds and retirement accounts.
• Property Information: Title deeds, mortgage statements, and rental agreements. Include details of all properties owned jointly or individually.
• Child-Related Documents: Birth certificates of children, school records, and any existing custody agreements. Include details of medical histories and extracurricular activities.
• Correspondence: Any communication between you and your spouse regarding the divorce, including emails, text messages, and letters.
• Legal Documents: Any previous legal documents or court orders related to the marriage or children, such as protection orders or maintenance orders.

4. What the Lawyer Will Do When You Decide to Proceed with a Divorce

Once you decide to proceed with a divorce after the initial consultation, Pauw Attorneys will undertake the following steps:

• Drafting Legal Documents: Prepare all necessary documents, including the Summons, Particulars of Claim, Notice of Set Down, and any other relevant pleadings or affidavits.
• Filing the Documents: Submit the divorce papers to the appropriate court (either High Court or Regional Court).
• Coordination with the Sheriff: Arrange for the service of the divorce papers on the other spouse by the Sheriff of the Court.
• Liaison with the Family Advocate: In cases involving children, work with the Family Advocate to ensure that custody, care, and contact issues are addressed in the best interests of the children.

5. Documents the Lawyer Will Prepare

The following documents are typically prepared by your lawyer at Pauw Attorneys to start a divorce:

• Summons: A legal document notifying the other party of the divorce proceedings.
• Particulars of Claim: Details the grounds for divorce and any claims for maintenance, custody, or division of assets.
• Notice of Set Down: A document that sets the date for the court hearing (if applicable).
• Settlement Agreement: If the divorce is uncontested, this document outlines how assets will be divided, child custody arrangements, and maintenance payments.
• Pleadings: Any additional documents required to respond to the other party's claims or defences.
• Affidavits: Sworn statements supporting your claims or responses in the divorce process.
• Court Applications: Any applications to the court for interim relief, such as maintenance or custody arrangements, pending the finalisation of the divorce.

6. Choose Between High Court and Regional Court

Divorce cases in South Africa can be heard in either the High Court or the Regional Court. Here are the key differences and considerations for choosing between the two:

• High Court:
• Regional Court:

Pauw Attorneys can help you determine the most appropriate court for your case, ensuring that your divorce proceedings are handled efficiently and effectively.

7. Role of the Family Advocate

The Office of the Family Advocate plays a crucial role in divorce cases involving children. They ensure that the best interests of the children are prioritised in matters of custody, care, and contact. The Family Advocate investigates and makes recommendations to the court regarding these issues. It is mandatory for divorce cases involving minor children to go through the Family Advocate's Office.

8. File the Divorce Papers

Divorce papers must be filed with the Clerk of the Court in the jurisdiction where either spouse resides. The jurisdiction will usually be the High Court or the Regional Court. There may be filing fees associated with this step. Pauw Attorneys can assist you with the correct filing procedures and ensure all documents are properly submitted.

9. Serve the Divorce Papers

Once the divorce papers are filed, they must be served on the other spouse by the Sheriff of the Court. The Sheriff will:

• Deliver the documents to the other party personally.
• Explain the nature of the documents being served.
• Provide proof of service, confirming that the documents have been delivered.

The spouse being served will have a set period (usually 10 to 20 days) to respond to the summons. Pauw Attorneys can facilitate this process, ensuring that the papers are served correctly and promptly.

10. Respond to the Divorce Papers (If You Are the Respondent)

If you are the respondent, you need to file a Notice of Intention to Defend if you wish to contest the divorce. This document indicates your intention to participate in the legal proceedings and contest the claims made by your spouse. If you do not respond within the stipulated time, the court may grant a default judgement in favour of the petitioner. Pauw Attorneys can provide the necessary legal assistance to file your response appropriately, which typically includes:

• Notice of Intention to Defend: Filed within the time frame stipulated in the summons.
• Plea or Counterclaim: Outlining your defence against the claims made and any counterclaims you wish to assert.

11. Negotiate a Settlement Agreement

For an uncontested divorce, both parties should work towards negotiating a Settlement Agreement. This document outlines how assets will be divided, child custody arrangements, and maintenance payments. It must be signed by both parties and can then be made an order of the court. Pauw Attorneys can help draft and negotiate this agreement to ensure that it is fair and comprehensive. Important aspects of a Settlement Agreement include:

• Division of Assets and Liabilities: Detailed breakdown of how marital assets and debts will be divided.
• Child Custody and Access: Specific arrangements for custody, visitation, and parental responsibilities.
• Maintenance Payments: Agreement on spousal and child maintenance, including amounts and payment schedules.
• Dispute Resolution: Mechanisms for resolving any future disputes without returning to court.

12. Attend Court Hearings

• Uncontested Divorce: Typically involves a brief court appearance where the judge or magistrate of the court reviews and approves the Settlement Agreement. Both parties may need to attend, but the process is usually straightforward.
• Contested Divorce: May require multiple court appearances and a trial to resolve disputes. Each party presents their case, and the judge or magistrate of the court makes a final decision on all contested issues. Pauw Attorneys will represent you in court, providing professional legal support throughout the hearings. This includes:Pre-Trial Conferences: Meetings to discuss the issues and attempt settlement before trial.Trial: Presentation of evidence and arguments before the judge or the magistrate of the court.Judgement: The judge’s or magistrate's decision on the contested issues.

Possible Questions from the Judge or Magistrate:

• Verification of Information: "Can you confirm your identity and the date of your marriage?"
• Grounds for Divorce: "Can you explain why you believe the marriage has irretrievably broken down?"
• Custody and Maintenance: "What arrangements have been made for the custody and maintenance of any children involved?"
• Financial Disclosures: "Have both parties fully disclosed their financial situations?"
• Settlement Agreement: "Do you both understand and agree to the terms of the settlement agreement?"

13. Finalise the Divorce

Once the court has reviewed all documents and agreements, and any hearings or trials are complete, the judge or magistrate of the court will issue a Decree of Divorce. This decree legally ends the marriage. Pauw Attorneys will ensure that you understand the implications of the decree and help you with any post-divorce legal matters.

14. Collection of Divorce Decree

After the Decree of Divorce has been issued, Pauw Attorneys will collect the official divorce decree from the court. They will provide you with a copy and explain the next steps, including any post-divorce arrangements that need to be finalised.

When a Divorce Goes to Trial

A divorce may go to trial if the parties cannot agree on key issues, such as:

• Division of property and assets
• Child custody and visitation rights
• Child and spousal maintenance

When a divorce goes to trial:

• Pre-Trial Preparation: Your attorney will prepare evidence, witness lists, and arguments to present in court.
• Trial Proceedings: Both parties, through their attorneys, present their cases to the judge or magistrate. This includes witness testimonies, cross-examinations, and submission of evidence.
• Judgement: The judge or magistrate makes a final decision based on the presented evidence and arguments.

Settling Out of Court

Many aspects of a divorce can be settled out of court to avoid the time and expense of a trial. Pauw Attorneys can assist in negotiating and mediating agreements on issues such as:

• Property Division: Agreeing on the division of assets and debts.
• Child Custody and Support: Establishing custody arrangements and calculating child support.
• Spousal Maintenance: Determining the amount and duration of spousal support.
• Visitation Rights: Setting schedules and guidelines for visitation.

Additional Considerations

• Children: The court prioritises the best interests of any children involved, including their welfare and living arrangements.
• Maintenance: Consideration will be given to the financial needs of both parties and any children, including spousal and child maintenance.
• Assets and Debts: Division of marital assets and debts will be determined based on fairness, which may not always mean an equal split.

Conclusion

Starting a divorce in South Africa involves several legal steps and considerations. While the process can be straightforward in uncontested cases, it can become complex and contentious when disputes arise. Seeking the guidance of Pauw Attorneys, a qualified family law firm, can help ensure that your rights and interests are protected throughout the process.

Remember, every divorce case is unique, and the steps outlined above provide a general framework. Specific cases may require additional steps or considerations based on individual circumstances. For professional and personalised legal assistance, contact Pauw Attorneys to navigate your divorce process effectively.

Contact Pauw Attorneys:

francois@pauwattorneys.co.za

info@pauwattorneys.co.za

www.pauwattorneys.co.za

+27 87 183 2252

+27 83 554 8776