To get a decree of divorce in South Africa, the parties file a summons for divorce at the High Court or the regional magistrate’s court, depending on the nature of the marriage. The summons sets out the grounds for the divorce, the relief claimed, and the terms of the settlement agreement. The court considers the application, and where the parties have agreed to the terms of the divorce, grants the decree of divorce. The decree is the final step in the divorce process, and it sets out the terms of the divorce.
This page explains how to get a decree of divorce in South Africa, the procedural steps, and the practical timeline to expect. If you need help with a divorce matter, our Sandton-based Family Law team can assist. Book an appointment to start the conversation.
What a decree of divorce is
A decree of divorce is the order of court that ends a marriage in South Africa. The decree is granted by the High Court or the regional magistrate’s court, depending on the nature of the divorce. The decree is the final step in the divorce process, and it sets out the terms of the divorce. Understanding the divorce process in South Africa can help individuals navigate their options more effectively. It is essential to gather all necessary documentation before filing for divorce. Additionally, seeking legal advice can provide guidance on the implications of the divorce decree and the terms outlined within it.
The decree is a public document, and it is recorded in the court file. The decree is also registered with the Department of Home Affairs, and the parties’ marital status is updated to reflect the divorce.
Where to file for divorce
The application for divorce is filed at the High Court or the regional magistrate’s court, depending on the nature of the marriage. The High Court has jurisdiction over all divorces, but the regional magistrate’s court has jurisdiction over most divorces involving less than R400,000 in assets, no children, and no dispute over the terms of the divorce.
The application is filed at the court in the district where the plaintiff resides, or where the parties last shared a residence. The clerk of the court will assist with the paperwork, and the matter is set down for hearing once the application is filed.
Documents needed
The documents needed for the application are listed below in the order they usually appear in the file.
- The summons for divorce, drafted by the attorney and signed by the plaintiff.
- The marriage certificate, which proves the existence of the marriage.
- The ID documents of both parties, which the court uses to identify the parties.
- The settlement agreement, which sets out the terms of the divorce.
- The supporting financial documents, including payslips, bank statements, and asset valuations.
How to file the application
The application is filed by the attorney at the clerk of the court. The clerk issues a case number, and the matter is set down for hearing. The attorney then arranges for the sheriff to serve the application on the other party.
The service must be in person, and the sheriff must deliver the application to the other party at the other party’s residence or place of business. The sheriff must complete a return of service, which is filed with the court.
What happens at the hearing
The hearing is held at the court, and the parties attend. The court hears the application, considers the settlement agreement, and where the parties have agreed to the terms, grants the decree of divorce.
The hearing is usually short, especially in uncontested matters. The court may ask the parties to confirm the terms of the settlement agreement, and may ask the parties to confirm the grounds for the divorce. The court then grants the decree of divorce.
How long the process takes
An uncontested divorce usually takes two to six months from the date of the summons. A contested divorce can take six months to more than a year, depending on the complexity of the matter and the court’s roll.
The court rolls are usually lighter in the smaller courts, and the matter can be set down for hearing sooner. The court rolls are usually heavier in the larger courts, and the matter can take longer to set down.
Common Mistakes to Avoid
These are the patterns that leave parties with the wrong outcome.
- Failing to serve the application. The matter cannot proceed 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.
- Skipping the supporting documents. The court will not grant the decree without the supporting documents.
- 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
How do I get a decree of divorce in South Africa?
The parties file a summons for divorce at the High Court or the regional magistrate’s court, depending on the nature of the marriage. The summons sets out the grounds for the divorce, the relief claimed, and the terms of the settlement agreement. The court considers the application, and where the parties have agreed to the terms of the divorce, grants the decree of divorce.
Where do I file for a divorce in South Africa?
The application for divorce is filed at the High Court or the regional magistrate’s court, depending on the nature of the marriage. The High Court has jurisdiction over all divorces, but the regional magistrate’s court has jurisdiction over most divorces involving less than R400,000 in assets, no children, and no dispute over the terms of the divorce.
What documents do I need for a divorce in South Africa?
You need the summons for divorce, the marriage certificate, the ID documents of both parties, the settlement agreement, and the supporting financial documents, including payslips, bank statements, and asset valuations.
How long does it take to get a decree of divorce in South Africa?
An uncontested divorce usually takes two to six months from the date of the summons. A contested divorce can take six months to more than a year, depending on the complexity of the matter and the court’s roll.
Can a divorce decree be appealed in South Africa?
The decree can be appealed on a question of law, but the appeal has to be lodged within a reasonable time of the decree of divorce. The decree is final when granted, and the parties cannot appeal the decree on a question of fact.
What happens if the other party does not agree to the divorce?
The court will consider the application, and where the parties have agreed to the terms, will grant the decree. Where the parties have not agreed, the court will consider the application as a contested divorce, and the matter can take longer to resolve.
Do I need a lawyer to get a divorce decree in South Africa?
A lawyer is not required for an uncontested divorce, but it is strongly recommended. The divorce is a complex legal process, and the parties should seek legal advice to ensure that their interests are protected.
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.
Call 060 500 3098 during office hours, or book an appointment online.
Disclaimer. This article provides general information about how to get a decree 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. Understanding the cost factors of divorce in South Africa can help individuals prepare financially for the process. Factors such as legal fees, court costs, and potential alimony can significantly impact one’s budget. It’s advisable to consult with a family attorney to gain a clearer picture of the possible costs involved.