The different types of divorce in South Africa are uncontested divorce, contested divorce, default divorce, and divorce by forfeiture. The choice depends on the specific circumstances of the matter, and the parties should seek legal advice to ensure that their interests are protected. The most common type is the uncontested divorce, where the parties have agreed to the terms of the divorce.
This page explains the different types of divorce in South Africa, the procedures for each, and the practical process to follow. If you need help with a divorce matter, our Sandton-based Family Law team can assist.
What the types of divorce are
The types of divorce in South Africa are listed below in the order they usually appear in practice.
- Uncontested divorce, where the parties have agreed to the terms of the divorce and the matter is set down for a single hearing.
- Contested divorce, where the parties have not agreed to the terms of the divorce and the matter is set down for a contested hearing.
- Default divorce, where the other party has been served and does not appear, and the court makes a default order.
- Divorce by forfeiture, where the court makes a forfeiture order under section 7(3) of the Divorce Act.
Uncontested divorce
The uncontested divorce is the most common type of divorce in South Africa. The parties have agreed to the terms of the divorce, and the matter is set down for a single hearing. The court hears the application, considers the settlement agreement, and grants the decree of divorce.
The uncontested divorce usually takes two to six months from the date of the summons. The court rolls are usually lighter in the smaller courts, and the matter can be set down for hearing sooner.
Contested divorce
The contested divorce is the second most common type of divorce in South Africa. The parties have not agreed to the terms of the divorce, and the matter is set down for a contested hearing. The court hears the evidence, considers the documents, and makes the appropriate order.
The contested divorce usually takes six months to more than a year, depending on the complexity of the matter and the court’s roll. The court rolls are usually heavier in the larger courts, and the matter can take longer to set down.
Default divorce
The default divorce is where the other party has been served and does not appear, and the court makes a default order. The default order has the same force as any other divorce order, and the other party can apply to set aside the order within a reasonable time.
The default divorce is the most common type of divorce in some circumstances, including where the other party is evading service, where the other party is in a different country, or where the other party is not responding to the application.
Divorce by forfeiture
The divorce by forfeiture is where the court makes a forfeiture order under section 7(3) of the Divorce Act. The forfeiture order is made where one party has contributed to the breakdown of the marriage, and the court orders the party to forfeit the patrimonial benefits of the marriage in favour of the other party.
The divorce by forfeiture is less common than the other types of divorce, and the court will weigh the actual facts of the matter and arrive at the appropriate order. The most common situations are listed below in the order they usually appear in practice.
- The marriage has broken down due to the adultery of one party, and the other party would otherwise benefit from the assets of the marriage.
- The marriage has broken down due to the abuse of one party, and the other party would otherwise benefit from the assets of the marriage.
- The marriage has broken down due to the addiction of one party, and the other party would otherwise benefit from the assets of the marriage.
Common Mistakes to Avoid
These are the patterns that leave parties with the wrong outcome.
- Skipping the grounds for divorce. The court will not grant the divorce without the grounds for the irretrievable breakdown.
- Failing to serve the summons. The court will not grant the divorce without proper service on the other party.
- Skipping the settlement agreement. The settlement agreement is the document that records the parties’ agreement on the terms of the divorce.
- Letting the dispute escalate. The right path is to engage with the other party and apply for variation where appropriate.
- Quitting the process before the decree is granted. The divorce is not final until the decree is granted.
Frequently Asked Questions
What are the different types of divorce in South Africa?
The different types of divorce in South Africa are uncontested divorce, contested divorce, default divorce, and divorce by forfeiture. The choice depends on the specific circumstances of the matter, and the parties should seek legal advice to ensure that their interests are protected.
What is the most common type of divorce in South Africa?
The uncontested divorce is the most common type of divorce in South Africa. The parties have agreed to the terms of the divorce, and the matter is set down for a single hearing. The court hears the application, considers the settlement agreement, and grants the decree of divorce.
What is the difference between uncontested and contested divorce?
An uncontested divorce is where the parties have agreed to the terms of the divorce, and the matter is set down for a single hearing. A contested divorce is where the parties have not agreed to the terms of the divorce, and the matter is set down for a contested hearing.
What is a default divorce in South Africa?
A default divorce is where the other party has been served and does not appear, and the court makes a default order. The default order has the same force as any other divorce order, and the other party can apply to set aside the order within a reasonable time.
What is a divorce by forfeiture in South Africa?
A divorce by forfeiture is where the court makes a forfeiture order under section 7(3) of the Divorce Act. The forfeiture order is made where one party has contributed to the breakdown of the marriage, and the court orders the party to forfeit the patrimonial benefits of the marriage in favour of the other party.
How long does an uncontested divorce take in South Africa?
An uncontested divorce usually takes two to six months from the date of the summons. The court rolls are usually lighter in the smaller courts, and the matter can be set down for hearing sooner.
How long does a contested divorce take in South Africa?
A contested divorce usually takes six months to more than a year, depending on the complexity of the matter and the court’s roll. The court rolls are usually heavier in the larger courts, and the matter can take longer to set down.
Get help with your divorce. If you need help with a divorce, Otrebski Attorneys’ Family Law team in Sandton can assist. As a 100% women-led firm with a 5-star Google rating, we focus on compassionate, practical legal solutions for families.
Disclaimer. This article provides general information about the different types of divorce in South Africa. It is not legal advice and does not replace consultation with a qualified family attorney. The relevant law is set out in the Divorce Act 70 of 1979, 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 settlement costs in South Africa can vary significantly based on several factors, including the complexity of the case and the attorney’s fees. Understanding these costs upfront can help individuals better prepare financially for the divorce process. It’s advisable to get detailed quotes from attorneys and consider all potential expenses involved to avoid any surprises later on.