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Basic Divorce Guide – Western Cape High Court – Cape Town

ByOur Lawyer

Basic Divorce Guide – Western Cape High Court – Cape Town

Basic Divorce Guide – Western Cape High Court – Cape Town

Written by Adv. Muhammad Abduroaf (LL.B LL.M)
(Advocate of the High Court of South Africa)

1. Legal Advice

1.1. If you want to get divorced from your spouse, I strongly advise that your approach a legal practitioner, or an attorney to attend to it on your behalf. This I would implore even more under the following circumstance:
1.1.1. There will be a dispute over care and visitation rights over the child/children;
1.1.2. One of the parties shall be applying for forfeiture of patrimonial benefits from a marriage in community of property;
1.1.3. The joint estate is huge or complicated; or
1.1.4. The other party shall be making use of legal representation.

1.2. If, however, you would like to know the general procedures on how to go about in obtaining a divorce decree; they are listed summarily below. There are many rules that regulate divorce processes and the summary below does exclude some of them. These include exceptions, strikeouts, compelling compliance, service addresses etc. Other matters incidental to divorce proceedings, e.g. interim arrangements, pending the divorce regarding maintenance for you or your children and care and contact regarding children are not dealt with. Therefore, please consult a legal practitioner or the divorce court throughout your divorce process should you decide to do the divorce yourself.

2. Summons and Particulars of Claim

2.1. A summons needs to be drafted which should be issued by the divorce court to commence the divorce process. It should have on it the details of the court you will be issuing divorce from, details of the parties, e.g. names, occupation, and address etc. Every High Court in the area where you live has the authority to attend to a divorce.
2.2. You should then draft particulars of claim outlining relevant matters concerning the marriage, children, reasons for wanting a divorce and what do you want the court to grant you in a divorce order. This particular of claim you attach to the summons.
2.3. Once you have your summons and particulars of claim in order, you have to have the summons issued.
2.4. To do this, make three (3) copies of your set of documents (Summons and Particulars of Claim) and have it issued at court.

3. Issuing and Service of Summons

3.1. Once you are at the court, go to the clerk/registrar of the court and have your documents issued.

3.2. The clerk/registrar will sign the summons and provide a case number and write it on the summons.

3.3. You should then take the original and a copy (both must be signed and stamped by the clerk/registrar of the court) and take it to the sheriff which serves documents where your spouse works of lives. You can ask the clerk/registrar of the court for that details.

3.4. The extra—copy of the summons and particulars of claim you keep for your file and records.

4. Notice of intention to defend

4.1. Once the sheriff has served the documents, your spouse has two weeks to inform you whether he or she shall be defending the divorce. This information is outlined in the summons.
4.2. If you spouse decided not the defend the divorce action, then after a period of two weeks has elapsed, you may set the matter down as an undefended divorce. If your spouse intends to defend the divorce, he or she would then have to do the following.

5. Plea to particulars of claim

5.1. Once you received notice of your spouse’s intention to defend the divorce, about a months later, your spouse or his or attorney should serve and file a plea.
5.2. The plea should outline which parts of your particulars of claim your spouse agrees (or disagree) with which would give a direction of what to prove in court.

6. Counter Claim

6.1. Your spouse might want to file a counterclaim. In the same way, which you outlined your case as to what you want from the court and the reasons therefore in your particulars of claim, your spouse can file on your as well a counterclaim.
6.2. A counterclaim might still be filed if your spouse agrees to a divorce, by maybe wants primary care of the children, but in your particulars of claim, you asked for primary care.
6.3. You should then within 10 (ten) days plead to the counterclaim the same manner in which you spouse pleaded to your particulars of claim.

7. Obtaining a Trial date

7.1. Once you received the plea, without a counterclaim, or have pleaded to your spouse’s counterclaim, you should then approach the clerk/registrar of the court for a trial date. This you or your spouse may do.

8. Discovery

8.1. While you are waiting for a trial date, and way before the trial, you may ask, or may be asked to provide under oath a schedule of books and documents in your possession and under your control relating to the divorce. This could be policy documents, deeds etc, and which your or your spouse might want to make use of at trial.
8.2. Once you received this schedules you may inspect and request copies of the documents.

9. Divorce day / Trial

9.1. If your spouse does not defend the divorce within the time period, go back to court and ask for an unopposed divorce date and attend to your divorce on that date.
9.2. If however your divorce is defended, a trial should ensure. During the trial, each party shall prove his or her case. Witnesses shall be called and at the end, the Magistrate or Judge shall deliver the verdict.

Best of luck, and please, don’t take my word, contact a legal practitioner should you decide to get divorced.

Kind regards,

Advocate Muhammad Abduroaf (Cape Town | Western Cape)

LL.B & LL.M (Master of Laws) Constitutional Litigation

Advocate of the High Court of South Africa

Supplied by:
Our Lawyer (Pty) Ltd
Office: 021 424 3487

View the following related pages:

Free DIY Online Divorce Guide and Form

A divorce guide in PDF format

A Sample Summons in Word format

A Particulars of Claim in Word Format

A notice of Set Down in Word Format

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10 comments so far

BrettPosted on8:10 pm - Feb 15, 2018

Good evening, I would like to get divorced from my wife, we have been living apart for about 3 yrs, its a straight forward divorce, we have no children, no disputes over assets. can I get divorced online? Is there such a thing as free divorce?
Thank you
Brett

    Our LawyerPosted on3:13 pm - Feb 16, 2018

    There is no need to make use of the services of lawyers for a divorce, unless necessary. Approach the divorce court in your area and start the process.

TamsinPosted on9:13 pm - Apr 4, 2018

Hi, I am trying to get a copy of a Divorce Decree from 1993 from the Western Cape High Court. I don’t have a case number. Do you have any advice as to how I would go about getting a case number and a copy of the Divorce Decree?

Thank you in advance,
Tamsin

EunicePosted on7:16 pm - Apr 17, 2018

Hi what do I need to apply for costomary devorce if the lobola agreement letter is lost

seanPosted on11:52 am - Apr 25, 2018

HI i am separated from my wife , we are happy to proceed with an uncontested divorce, settlement is drafted, family plan is drafted and signed, i would like the fastest way to deal with the process, One child (13)

Patricia NorvalPosted on1:29 am - Apr 11, 2019

I live with my husband, my two children and his daughter. I’m working for my husband which has a sewing machine business which I run during the day.  I sell parts and take the machines in for the repairs, make orders and does the books. He works full time and does the repairs of the machines  at night. I get 10% of the monthly income of the business. We make between R10000 and R20000 a month sometimes less sometimes more. He is filling for a divorce and  I will have a income which will only pay for my children’s school fees and no place to stay with my children. The only other income is the all pay I get from government, which I use for clothing and toiletries for the children. My children don’t have a father to help support them he has passed away. Me and my husband are married with a prenuptial agreement which will leave me with no where to go and without a job,  if he leaves for his trip to Africa in November because the business will be closed.  We are married for 6 years and I haven’t worked in that time for any other employers. It will be hard to find a job now and earn enough to get a place to stay and provide for a 16 and 12 year old.
This is what he is willing to give me after 6 years of marriage and running his business and him spending the money on another woman taking her out for trips on weekends while I have to work at home because I have to think about getting money in so I can make commission, otherwise there’s no income for me.

What He wants to give me
1x Double bed
2x Single beds
1x Flat screen TV
1x Trish dresser
2x Bed pedestals
1x Metal shelve (Alaysa room)
Cutlery and utensils for 3 people
Pots and pans for 3 people
All necessary bedding for 3 beds.
All her jewellery and clothing.
1x Brother industrial sewing machine
1x Brother domestic sewing machine
1x Brother domestic overlocker
1x Brother domestic embroidery machine She can continue working at the sewing machine repairs.
Salary will be a basic of R4200 a month plus 10% commission on turn over.
Working hours will be 8h00 to 17h00 monday to Friday. Saturday 8h00 to 13h00 and one Saturday of a month.

I have no grounds to stand on, so can you please advice me how I should go about my situation.

    Our LawyerPosted on7:26 pm - Apr 13, 2019

    Good day
    When he starts the divorce process, counterclaim that you want personal maintenance for yourself. The court would decide if it is fair or warranted.

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