Obtaining a divorce in South Africa can potentially be uncomplicated should you choose to make use of a proficient Attorney, we specialise in uncontested and contested divorces. Another major problem is that the high courts are often backlogged and it can take months to get an available court date. There are two places you can get divorced; the regional Magistrates Court or the High Court. In order to initiate a divorce one of the parties needs to deliver a summons to other, this must be done personally by the sheriff of the court.
Generally, there are two types of divorces, the unopposed and uncontested or the opposed and contested divorces.
In South Africa, the type of marriage of the parties will govern how the assets will be split upon the conclusion of the marriage, the assets being those at the time of the divorce. In our judicial system, we have a ‘no fault’ system of divorce, meaning that a divorce will be permitted if one of the parties feels that there has been an ‘irretrievable breakdown of the marriage relationship’ and that there are is no reasonable likelihood of restoring it. Therefore, a marriage can be concluded even if one of the parties does not wish to get divorced.
Civil marriages, civil unions or any other religious marriages conducted by certified marriage officers can only be concluded by the rule of the court. The partner wishing to end the marriage must issue a summons against the other partner, stating that the marriage has entered an irreversible state and that there is no sensible way of restoring the relationship and which type of marriage the spouses are entered in to. The summons must allocate the division of the assets the spouses hold, either stating that the parties have entered into a previous arrangement or asking the court to divide the joint assets. Both spouses also need to come to an agreement regarding any children born or adopted by the spouses during their marriage.
In mediation, there is a neutral third party present that will usually be a go-between for the two spouses, the mediator will assist both spouses on the best course of action to take in their divorce process.
The mediator will typically have a background in law or psychology, however, the mediator has no authority in decision making and is purely there to ensure both parties can come to an understanding. The mediator will assist the party in making sensible decisions regarding the estate or any children.
Mediation will only work for spouses that wish to resolve their differences without the need for litigation, both parties should be willing to negotiate and come to an understanding. Mediation is a great tool to utilise in divorce proceedings, it potentially alleviates the monetary burden as opposed to a contested divorce, in addition to getting the Parties to agree on issues which may be in dispute.
Before you decide to go the mediator route, you should know a few key points:
- You may appoint two co-mediators.
- Mediation is currently a voluntary procedure.
- The mediator should have no relationship with either party.
- One of our dedicated divorce Attorneys can act as your mediator.