Filing for divorce first in South Africa does not give one spouse a legal advantage over the other. It is a procedural step that sets the divorce in motion and assigns the roles of plaintiff and defendant. The court decides custody, maintenance, and the division of assets on the facts of the matter, not on who handed in the papers first.
The divorce process is governed by the Divorce Act 70 of 1979 together with the Uniform Rules of Court. Once a summons is issued, the sheriff must serve it on the other spouse, who then has an opportunity to defend. Understanding each step helps you make informed decisions before you approach the court.
What filing first actually means
The spouse who launches the divorce action is called the plaintiff, and the other spouse is called the defendant. These labels come from the Uniform Rules of Court and they describe procedure, not guilt. The plaintiff prepares the summons and the particulars of claim, sets out the relief sought, and pays the issuing fee at court.
Filing first does not improve your share of the joint estate, does not improve your chances of primary residence of the children, and does not weaken your spouse’s right to defend. The Constitutional Court has repeatedly confirmed that both parties enter the divorce process on an equal footing. The financial impacts of divorce settlements can often lead to lengthy negotiations, as each party seeks to safeguard their interests. Understanding these financial implications is crucial for making informed decisions during the process. Moreover, it is essential to consult with legal and financial professionals to navigate the complexities involved.
How the summons is served
Once the registrar issues the summons, the plaintiff cannot hand it to the defendant personally. Service is carried out by the sheriff of the court, an independent officer appointed under the Sheriff’s Act 90 of 1986. The sheriff attends the defendant’s home or workplace and serves the document, then completes a return of service that is filed at court.
If the sheriff cannot trace the defendant, the plaintiff may apply to the court for substituted service, which allows service by email, publication in the Government Gazette, or another method the court considers appropriate. Proper service is what triggers the defendant’s time limits to respond.
The defendant’s right to defend
After service, the defendant has 10 court days to serve a notice of intention to defend, followed by a plea. The defendant may also bring a counterclaim, asking the court for relief against the plaintiff. A defended divorce proceeds to trial, where evidence is led and the court decides each issue.
Where the defendant does not enter an appearance to defend, the plaintiff may set the matter down on an unopposed basis and ask the court to grant the divorce on the terms set out in the summons. The court still has a discretion to refuse the decree if the grounds are not properly established.
Does filing first affect assets or custody
Filing first does not give the plaintiff a larger portion of the joint estate. In a marriage in community of property, the joint estate is divided equally unless the court, on limited grounds, orders an adjustment under section 7(3) of the Divorce Act. In a marriage out of community of property with accrual, the accrual is calculated in accordance with the Matrimonial Property Act 88 of 1984.
Children’s care and contact are decided under section 7 of the Children’s Act 38 of 2005, on the standard of the best interests of the child. The court does not favour the parent who filed first. The Office of the Family Advocate may be appointed to investigate and report on what arrangement serves the children.
- The plaintiff chooses the court, but only where the parties meet the residence requirements.
- The plaintiff drafts the first version of the settlement terms, which the defendant can oppose or counterclaim.
- The plaintiff pays the initial issuing and sheriff’s fees, which usually form part of the costs order.
- Neither party gains a procedural edge on asset division or child-related disputes.
Strategic considerations worth weighing
Although there is no legal edge, there are practical considerations a plaintiff may weigh before issuing summons.
- Jurisdiction. The summons fixes the court where the matter will be heard. The plaintiff must issue in a division where one or both parties reside or carry on business.
- Timing. Some spouses prefer to settle financial arrangements, valuations, and disclosures before issuing, so that the summons records an agreed position.
- Rule 43 interim relief. Either party may apply for interim maintenance, a contribution to costs, or interim care and contact pending the final decree. Filing first lets you launch this application at the same time as the main action.
- Disclosure. Once the action is defended, both parties must make full and frank financial disclosure under Rule 35.
How long the process takes
An unopposed divorce can be finalised within a few weeks of issue, depending on the court roll. A defended divorce frequently involves a lengthy litigation process, running for many months, sometimes longer, because pleadings close, discovery is exchanged, and the trial must be set down. The plaintiff’s choice to file first does not accelerate these steps.
Frequently Asked Questions
Does filing for divorce first give you a legal advantage in South Africa?
No. Filing first only makes you the plaintiff in the action. The Divorce Act 70 of 1979 and the Uniform Rules of Court treat both parties equally, and the court decides assets, maintenance, and child-related issues on the merits.
Who serves the divorce summons in South Africa?
The sheriff of the court serves the summons. The plaintiff issues the document at court, but the sheriff, an independent officer appointed under the Sheriff’s Act 90 of 1986, delivers it to the defendant and files a return of service.
Can the defendant oppose the divorce after it is filed?
Yes. The defendant has 10 court days to serve a notice of intention to defend, followed by a plea. The defendant may also bring a counterclaim, in which case the matter proceeds as a defended divorce.
Does filing first affect the division of assets?
No. In a marriage in community of property the joint estate is divided equally, subject to limited exceptions under section 7 of the Divorce Act. In an accrual marriage, the accrual is calculated under the Matrimonial Property Act 88 of 1984. The plaintiff label does not change the math.
Does filing first affect child custody?
No. Care and contact are decided under section 7 of the Children’s Act 38 of 2005 on the best interests of the child. The Family Advocate may investigate and report, and the court does not favour the parent who filed first.
What is Rule 43 interim relief?
Rule 43 of the Uniform Rules allows either spouse to apply for interim maintenance, a contribution to legal costs, or interim care and contact while the divorce is pending. The plaintiff can launch this application together with the main action.
How long after filing does the divorce become final?
An unopposed divorce can be finalised within weeks of issue. A defended divorce usually takes several months to over a year, depending on pleadings, discovery, and the trial roll of the court.
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Disclaimer. This article provides general information about filing for divorce first in South Africa and is current as at August 2026. It is not legal advice and does not replace consultation with a qualified family attorney. The relevant law includes the Divorce Act 70 of 1979, the Uniform Rules of Court, and the Children’s Act 38 of 2005, all of which may be amended. Confirm the current position with the Department of Justice and Constitutional Development or speak to a family attorney before relying on anything in this article. Divorce legal fees in South Africa can vary significantly based on the complexity of the case and the attorney’s experience. It is advisable to budget for both court costs and additional expenses that may arise during the process. Understanding these fees upfront can help individuals prepare financially for their divorce proceedings.