fbpx

Basic Divorce Guide in South Africa – Summons, Pleas, Discovery and Trial

Divorce Western Cape South Africa Court

Basic Divorce Guide for all courts in South Africa

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

Legal Advice regarding divorces

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 circumstances:
– There will be a dispute over care and visitation rights over the child/children;
– One of the parties will be applying for forfeiture of patrimonial benefits from a marriage in community of property;

-The joint estate is huge or complicated; or

-The other party will be making use of legal representation.

General divorce procedures

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. Many rules regulate divorce processes and the summary below does exclude some of them. These include pretrial conferences, judicial case management, exceptions, strikeouts, compelling compliance, service addresses etc. Other matters incidental to divorce proceedings, for example, 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 attend to the divorce yourself.

Summons and Particulars of Claim in a Divorce Matter

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 the 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.

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. The particulars of claim you attach to the summons.

Once you have your summons and particulars of claim in order, you have to have the summons issued at court. To do this, make three (3) copies of your set of documents (Summons and Particulars of Claim) and have it issued at court.

Issuing and Service of a Divorce Summons

Once you are at the divorce court, go to the clerk/registrar of the court and have your documents issued. The clerk/registrar will sign the summons and provide a case number and insert it on the summons.

You should then take the original and a copy (both must be signed and stamped by the clerk/registrar of the court) to the sheriff which serves documents where your spouse works of lives. You can ask the clerk/registrar of the court for those details. The extra—copy of the summons and particulars of claim you should keep for your file and records.

Notice of intention to defend in a divorce matter

Once the sheriff served the latter court documents, your spouse has two weeks to inform you whether he or she will be defending the divorce. This information is outlined in the summons.
If your spouse decided not to 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 what follows.

Plea to particulars of claim in a divorce matter

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

Counter Claim in a divorce matter

Your spouse might want to file a counterclaim. In the same manner, as you outlined your case as to what you want from the court and the reasons therefore in your particulars of claim, your spouse can do this in a counterclaim.

A counterclaim might still be filed if your spouse agrees to a divorce, but maybe wants primary care of the children, but in your particulars of claim, you asked for primary care. You should then within 10 (ten) days plead to the counterclaim in the same manner in which your spouse pleaded to your particulars of claim.

Obtaining a Trial date for your Divorce

Once you received the plea, with or 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. Various processes may take place up until obtaining a trial date. These include pre-trial conferences and judicial case management proceedings etc. I will not deal with those items herein.

Discovery in Divorce matters

While you are waiting for a trial date, and long before that date, 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, title deeds etc., and which you or your spouse might want to make use of at trial. Once you received this schedule you may inspect and request copies of the documents.

Divorce day / Trial day

If your spouse does not defend the divorce within the allowed time period, go back to court and ask for an unopposed divorce date and attend to your divorce on that date. If however, your divorce is defended, a trial should ensure. During the trial, each party will prove his or her case. Witnesses will be called and at the end, the Magistrate or Judge will 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: 0211110090

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

Have a family Law appointment with us

We have an online appointments system which enables you to save valuable time and cut straight to the chase. There is, therefore, no need for you to visit our offices (unless it is best for you to do so, or is your most preferred option).
You may set up telephonic or video consultations should you wish to do so. You can, therefore, stay in the office or on the couch in the comfort of your own home when dealing with us. We are therefore physical, online, set-up and ready to meet with you. Make your appointment online for a consultation today.

If you find any of our articles, free resources and posts interesting, or possibly useful to others, please like and share it on Social Media by clicking on the icons below. Should you require any other legal services and advice, not related to family law, visit Private Legal. Or click here for the details of Cape Town Advocate, Muhammad Abduroaf.

 

Please share. Someone in need may find it useful.

Related Post

10 thoughts on “Basic Divorce Guide in South Africa – Summons, Pleas, Discovery and Trial

  1. 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.

    1. 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.

  2. 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)

  3. 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

  4. 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

Leave a Reply

Your email address will not be published. Required fields are marked *

Call Now ButtonCall now