To start the process of separation in South Africa, the parties first decide whether to separate informally or formally. The informal separation is the decision to live apart, and the formal separation is the agreement recorded in a separation agreement. The next step is to negotiate the terms of the separation, including the division of the assets, the maintenance of the children, and the spousal maintenance. The final step is to file the separation agreement with the court, and to apply for the divorce if the parties decide to divorce.
This page explains how to start the process of separation in South Africa, the procedural steps, and the practical process to follow. If you need help with a separation matter, our Sandton-based Family Law team can assist. Book an appointment to start the conversation.
Decide whether to separate informally or formally
The first step is to decide whether to separate informally or formally. The informal separation is the decision to live apart, and the formal separation is the agreement recorded in a separation agreement. The choice depends on the couple’s circumstances, and the most common factors are listed below in the order they usually appear in practice.
- The cost of the separation, where the informal separation is cheaper than the formal separation.
- The formality of the separation, where the formal separation is more formal than the informal separation.
- The legal finality, where the formal separation gives more legal finality than the informal separation.
- The ability to negotiate, where the formal separation gives more scope for negotiation than the informal separation.
Negotiate the terms of the separation
The next step is to negotiate the terms of the separation. The terms include the division of the assets, the maintenance of the children, and the spousal maintenance. The parties can negotiate the terms themselves, or they can use a mediator or an attorney to assist.
The most common terms are listed below in the order they usually appear in practice.
- The division of the assets, including the matrimonial home, the bank accounts, the investments, and the other assets.
- The maintenance of the children, including the monthly amount, the day of the month, and the payment method.
- The spousal maintenance, including the monthly amount, the duration, and the conditions.
- The custody and care of the children, including the children’s primary care and contact arrangements.
Draft the separation agreement
The next step is to draft the separation agreement. The agreement is a written contract that records the terms of the separation. The agreement is signed by the parties, and the agreement is enforceable under contract law.
The most common terms in the agreement are listed below in the order they usually appear in practice.
- The names of the parties, including the ID numbers and the addresses.
- The date of the marriage, including the date of the separation.
- The terms of the separation, including the division of the assets, the maintenance of the children, and the spousal maintenance.
- The signatures of the parties, including the dates of the signatures.
File the separation agreement with the court
The next step is to file the separation agreement with the court. The agreement is filed at the High Court or the regional magistrate’s court, depending on the nature of the matter. The clerk of the court will check the agreement, and the agreement is recorded in the court file.
The agreement is not a court order, but the agreement can be made an order of court on the application of either party. The court will consider the agreement, and if satisfied that the terms are fair, will make the agreement an order of court.
Apply for the divorce if the parties decide to divorce
The final step is to apply for the divorce if the parties decide to divorce. The divorce is filed at the High Court or the regional magistrate’s court, depending on the nature of the marriage. The clerk of the court will check the application, and the matter is set down for hearing.
The court will consider the application, and where the parties have agreed to the terms of the divorce, will grant the decree of divorce. The decree of divorce is the final step in the divorce process, and the parties are free to remarry.
Common Mistakes to Avoid
These are the patterns that leave parties with the wrong outcome.
- Skipping the separation agreement. The separation agreement is the document that records the parties’ agreement on the terms of the separation.
- Skipping the supporting documents. The court will not record the agreement without the supporting documents.
- Skipping the negotiation. The negotiation is the process by which the parties agree on the terms of the separation.
- 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 agreement is signed. The separation is not final until the agreement is signed.
Frequently Asked Questions
How do you start the process of separation in South Africa?
The parties first decide whether to separate informally or formally. The informal separation is the decision to live apart, and the formal separation is the agreement recorded in a separation agreement. The next step is to negotiate the terms of the separation, including the division of the assets, the maintenance of the children, and the spousal maintenance. The final step is to file the separation agreement with the court, and to apply for the divorce if the parties decide to divorce.
What is the difference between informal and formal separation?
The informal separation is the decision to live apart, and the formal separation is the agreement recorded in a separation agreement. The choice depends on the couple’s circumstances, and the most common factors are the cost, the formality, and the legal finality.
What terms are negotiated in a separation agreement?
The terms negotiated in a separation agreement include the division of the assets, the maintenance of the children, the spousal maintenance, and the custody and care of the children. The parties can negotiate the terms themselves, or they can use a mediator or an attorney to assist.
Where do you file the separation agreement?
The separation agreement is filed at the High Court or the regional magistrate’s court, depending on the nature of the matter. The clerk of the court will check the agreement, and the agreement is recorded in the court file.
Can a separation agreement be enforced?
Yes. A separation agreement is a binding contract between the parties, and the parties can apply to the court for an order enforcing the agreement. The court will consider the application, and if satisfied that the agreement has been breached, will make an order enforcing the agreement.
Can a separation be reversed in South Africa?
Yes. A separation can be reversed where the parties decide to reconcile. The parties can sign a new agreement that records the reconciliation, and the parties can continue with the marriage as before.
Do I need a lawyer to start the process of separation?
A lawyer is not required for an informal separation, but it is strongly recommended for a formal separation. The separation agreement is a complex legal document, and the parties should seek legal advice to ensure that their interests are protected.
Get help with your separation. If you need help with a separation matter, 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.
Call 060 500 3098 during office hours, or book an appointment online.
Disclaimer. This article provides general information about how to start the process of separation 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.