Divorces

1. What is the process to follow to get divoced?

You have to consult an attorney who will then prepare and issue a summons and particulars of claim.  You will need your original marriage certificate to accompany such summons to court.  After the summons has been issued, it will be served by the Sheriff upon your spouse.  Should your spouse contest such divorce proceedings, he/she must appoint their own attorney, respond to your claim and file a counterclaim.  The court urges parties to try and reach a settlement and should this happen, your attorney will draft a deed of settlement, which has to be signed by both parties.  The divorce will then be finalised as unopposed.  If no agreement is reached, a court date will be set for the Judge / Magistrate to decide on the disputed issues.

2. Which courts have jurisdiction to adjudicate divorces?

Any High Court or Regional Court in South Africa.

3. When will a court grant a decree of divorce?

A court may grant a decree of divorce on the ground of the irretrievable break-down of a marriage or if the court is satisfied that the marriage relationship between the parties to the marriage has reached such a state of disintergration that there is no reasonable prospect of the restoration of a normal marriage relationship between them.  You will have to provide reasons to the court as to why the marriage has broken down irretrievably and that there is no possibility of reconciliation.

4. What does forfeiture of patrimonial benefits of marriage mean?

The court may make an order that the patrimonial benefits of the marriage be forfeited by one party in favour of the other, either wholly or in part, if the court, having regard to the duration of the marriage, the circumstances which gave rise to the  break-down thereof and any substantial misconduct on the part of either of the parties, is satisfied that, if the order for forfeiture is not made, the one party will in relation to the other be unduly benefited.

5. What is the function of the Family Advocate?

The Family Advocate assists parties to reach agreement on disputed issues, for example custody, access and guardianship of minor children.  If the parties are unable to reach an agreement, the Family Advocate evaluates the parties’ circumstances in light of the best interest of the child and makes a recommendation to the Court with regard to these aspects.  In certain instances, the Family Advocate may approach psychologists, social workers or mediators for their assistance.

6. Who pays the Family Advocate?

The services of the Family Advocate are rendered to the public free of charge.  The Family Advocate is a legal officer employed by the Department of Justice and acts as legal representative of the children.