You are entitled to a divorce:
- If you can prove to a court that you and your spouse can no longer live together and there is no chance of resolving your differences.
- If one of the spouses is mentally ill or continuously unconscious
You do not have to get your spouse's permission to get a divorce. If your spouse is not willing to get divorced, you can get a divorce granted without his or her consent.
In special circumstances you may get your marriage annulled. An annulment differs from a divorce in that it not only dissolves the marriage but also wipes it off the record.
Legal separation does not exist in South Africa even if you are no longer living with your husband and not divorced. According to the law, you are still married.
You can divorce in either the Regional Court of the Magistrate Court having jurisdiction in your area or in the High Court.
To start the divorce process you need to have a summons served. A divorce summons must be served personally on the defendant by the sheriff of the court.
There are two types of divorces, contested and uncontested divorce.
The uncontested divorce is the best and most cost effective for all parties concerned. It can be finalised within 4 weeks. If a divorce is contested it may take between 2 - 3 years, but most contested divorces do settle long before they go on trial.
A civil marriage and customary marriage need to be dissolved by a court.
Note: A default divorce is similar to an uncontested/unopposed divorce. This works when your spouse does not respond at all to the divorce.
- Your spouse will receive a summons with a date to respond.
- If they do not respond, you can apply at the High Court, to add it to the roll.
- The court will decide on your behalf and end your marriage.
Do-it-yourself divorces are concluded without the help of an attorney, and are thus far cheaper option. Divorcing without an attorney can be achieved in two ways:
- Your local magistrate’s court can provide you with the necessary forms and give you guidance on how to conclude your own divorce without legal representation.
Doing your own divorce might be an option when:
- your divorce is uncontested;
- your divorce is not complicated;
- you have been married for a short period of time;
- you don’t have substantial assets to divide;
- there are no disputes regarding any children; and/or
- you are prepared to do all the admin yourself.
For more information contact the Department of Justice and Constitutional Development.