Filing divorce papers is the formal step that begins every divorce in South Africa. The moment the summons is issued by the court and served on the other spouse, the legal process is under way. Whether the matter proceeds as contested or uncontested, the same documents must be prepared, the same court must issue them, and the same rules of service apply. Knowing what each paper does helps you avoid costly delays.
This guide sets out, step by step, how to file divorce papers in South Africa under the Divorce Act 70 of 1979 and the Uniform Rules of Court. It covers the documents you need, the court you approach, how the summons is issued and served, the defendant’s response, and how the matter is enrolled for hearing. It is written for spouses who want to understand the paperwork before they instruct an attorney.
Otrebski Attorneys’ Family Law team in Sandton prepares and files divorce papers for clients across the country, ensuring the summons, particulars of claim, and supporting documents are correct from the outset.
The documents you need to file for divorce
Before any paper is filed, you must gather the underlying documents that the summons and particulars of claim rely on. The Divorce Act 70 of 1979 and the Uniform Rules of Court require the plaintiff to give the court and the defendant enough information to understand the claim and respond to it. Missing or inaccurate documents are the most common cause of delay.
- A certified copy of the marriage certificate, or a certified copy of the registration of a customary or civil union where applicable.
- The full names, identity numbers, and contact details of both spouses, and the date and place of marriage.
- Particulars of any minor or dependent children, including their birth certificates and proposed care, contact, and maintenance arrangements.
- Details of the marital property regime, whether in community of property, out of community with accrual, or out of community without accrual.
- Particulars of the joint or separate estate, including immovable property, pension interests, bank accounts, and vehicles.
- A draft settlement agreement or consent paper, where the parties have agreed on the terms of the divorce.
- Proof of jurisdiction, such as the address where the defendant resides or works, or where the parties last lived together as spouses.
These documents form the basis of the summons. If the marriage certificate cannot be located, a replacement can be obtained from the Department of Home Affairs before the papers are filed.
Step 1: Draft the combined summons and particulars of claim
The document that starts the divorce is the combined summons together with the particulars of claim. It is the single most important paper in the process. It sets out the names of the parties, the ground for divorce, the relief sought, and the proposed arrangements for any children. Under the Divorce Act 70 of 1979 the most common ground is the irretrievable breakdown of the marriage.
The particulars of claim must clearly state the marital regime, the identities of any children, the division of assets sought, and any claim for spousal or child maintenance. Where the parties have settled, a draft settlement agreement, sometimes called a consent paper, is attached and the court is asked to make it an order of court. Accuracy matters, because a defective summons can be met with an exception that forces the plaintiff to amend and re-serve the papers.
Step 2: Choose the correct court
Divorce papers are filed either in the Regional Divorce Court or in the High Court. The Regional Divorce Court hears the majority of ordinary divorces. The High Court hears matters that are complex, that involve substantial assets, or where the parties choose to proceed in that court for other strategic reasons.
The court must have jurisdiction. Jurisdiction is determined by where the defendant resides or works, or where the parties last lived together as spouses, on the date the summons is issued. Filing in the wrong court will result in the matter being struck from the roll or transferred, which adds weeks to the process.
Step 3: Issue the summons and obtain a case number
Once the summons is drafted, it is taken to the registrar of the High Court or the clerk of the Regional Divorce Court for issue. Issue is the act by which the court stamps the summons, allocates a case number, and brings the action into existence. Until the summons is issued, it has no legal force.
Court fees are payable on issue. The fees are set by the Department of Justice and Constitutional Development and are reviewed periodically. A party who cannot afford the fees may apply, by affidavit, to have them waived on the basis of financial hardship. Once the case number is allocated, it is recorded on every subsequent document filed in the matter.
Step 4: Serve the divorce papers through the sheriff
After issue, the sheriff of the court serves the summons, particulars of claim, and any accompanying settlement agreement on the defendant. Personal service is required by the Uniform Rules of Court. The sheriff attends the defendant’s address, hands the papers over, and prepares a return of service that records when, where, and how service took place.
The return of service is filed with the court and forms part of the official record. It is the proof the court relies on to find that the defendant knows about the action. Where the defendant cannot be located after diligent attempts, the plaintiff may apply for substituted service, which allows service by another method such as publication in a newspaper or the Government Gazette, or by email and WhatsApp where appropriate.
Step 5: The defendant’s response
Once served, the defendant has 10 court days, or the period stated on the summons, to respond. The response decides which track the matter follows:
- Undefended divorce: the defendant does not file a notice of intention to defend, and the matter proceeds on an unopposed basis.
- Defended divorce: the defendant files a notice of intention to defend and later a plea, and the matter proceeds as contested.
- Settlement: the parties sign a consent paper or settlement agreement that resolves every issue, and the matter is set down on the unopposed roll.
Most divorces in South Africa settle before trial. A signed settlement agreement, properly drafted as a consent paper, lets the matter proceed quickly and at lower cost.
Step 6: The Family Advocate and the consent paper
Where there are minor children, the court must be satisfied that the arrangements for care and contact are in the best interests of the child, as required by the Children’s Act 38 of 2005 and the Divorce Act 70 of 1979. This is where the Family Advocate becomes involved. The Family Advocate interviews the parties and, where they agree, endorses the parenting plan contained in the consent paper.
In an uncontested divorce with children, the Family Advocate’s endorsement must be obtained before the court will grant the decree. The consent paper is then incorporated into the decree of divorce and becomes an order of court. This step does not apply where there are no minor children, although the court still has a discretion to ensure that maintenance and the division of assets are fair.
Step 7: Enrol the matter and file a notice of set-down
Once the papers are ready and any Family Advocate endorsement is in hand, the matter is placed on the court roll. The plaintiff’s attorney files a notice of set-down and applies for a date from the registrar. The notice of set-down is served on the defendant and confirms the date and time the matter will be heard.
An uncontested divorce is enrolled on the unopposed roll and is usually heard within a few weeks to a few months, depending on the court. A contested divorce is enrolled for trial after pleadings, discovery, and a pre-trial conference have been completed, and frequently takes a year or more.
Step 8: The hearing and the decree of divorce
At the hearing, the court considers the papers and the evidence. In an uncontested matter the plaintiff gives brief oral evidence confirming that the marriage has broken down irretrievably and that the terms of the consent paper are agreed. The court then grants a decree of divorce and incorporates the settlement agreement into the decree, making it an order of court.
Once granted, the decree of divorce is final. The parties are divorced and free to remarry, subject to the time limits that apply where an appeal is noted.
Frequently Asked Questions
What papers do I need to file for divorce in South Africa?
You need a combined summons with particulars of claim, a certified copy of your marriage certificate, the birth certificates of any minor children, details of the marital property regime and the estate, and a draft settlement agreement or consent paper where the parties have agreed on the terms.
Where do I file divorce papers in South Africa?
Divorce papers are filed in the Regional Divorce Court or the High Court. The court must have jurisdiction, which is determined by where the defendant resides or works, or where the parties last lived together as spouses, on the date the summons is issued.
How is a divorce summons served on the other spouse?
After the summons is issued and a case number is allocated, the sheriff of the court serves the papers personally on the defendant. The sheriff prepares a return of service that is filed with the court. Where the defendant cannot be found, the plaintiff may apply for substituted service.
What is a case number and when is it allocated?
A case number is the unique reference the court allocates to a divorce action when the registrar or clerk issues the summons. It is recorded on every document filed afterwards and is used to enrol the matter on the court roll.
How long does the defendant have to respond to divorce papers?
The defendant has 10 court days, or the period stated on the summons, to file a notice of intention to defend. If no notice is filed, the matter proceeds as undefended. If a notice is filed, the matter proceeds as contested.
Do I need a consent paper to file divorce papers?
A consent paper is required only where the parties have agreed on the terms of the divorce, such as the division of assets, maintenance, and the care of children. In a contested divorce there is no consent paper and the court decides the disputed issues after a trial.
Can I file divorce papers without a lawyer in South Africa?
It is possible to file divorce papers without an attorney, particularly in a simple undefended matter. However, the procedure is technical and errors in the summons, service, or the settlement agreement can delay the matter. Legal Aid South Africa may assist qualifying persons.
Get help with your divorce. If you need to file divorce papers, Otrebski Attorneys’ Family Law team in Sandton will draft the summons, issue it in the correct court, and handle service and enrolment from start to finish. As a 100% women-led firm directed by Nastasja Otrebski, with a 5-star Google rating from 12 reviews and a Level 4 B-BBEE rating, we deliver practical, compassionate family law solutions from a single Sandton office.
Call 060 500 3098 or book an appointment with our Family Law team.
Disclaimer. This article provides general information about how to file divorce papers 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, the Children’s Act 38 of 2005, and the Uniform Rules of Court, 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.