It often happens, when a marriage has irretrievably broken down, the parties are in agreement that they have to divorce. Furthermore, the parties came to an agreement regarding the propriety aspects of the marriage, care and contact of the minor children, as well as who should pay for the cost in relation to the divorce. If all the latter has been agreed upon, there is no need for the parties to wait many months to get divorced. What this article deals with is a real-life scenario where the marriage between a couple would be dissolved in the shortest possible time. In this case, three (3) days from the date of meeting their lawyer. If you don’t feel like reading this entire article, scroll down to the bottom for an illustration of a divorce finalised in 3 (three) days.
Furthermore, it may become necessary for there to be a quick divorce. One such reason could be that a party is only visiting South Africa for a very short while and wants to resolve issues expeditiously. This would especially be so if the parties lived separately for a long time despite being married. Before we proceed with exploring and unpacking the question this article relates to, we will first have to look at certain basic requirements in order for parties to get divorced. This relates to the court’s jurisdiction, as well as the requirement that a marriage has broken down irretrievably. Another one is that they should be married. I guess we all knew that.
It does not mean that because you got married in a specific province or town that the Court situated there has the authority to divorce you. For example, if you married in Cape Town, and relocated to Johannesburg, and live there for quite some time, then Cape Town Court will not necessarily have the jurisdiction to divorce you. The same would apply should the parties have married in Johannesburg and relocated to the United States of America, and are domiciled there. Should they wish to get divorced, they cannot get divorced in Johannesburg. This is so as the Johannesburg Court will not have jurisdiction to divorce this specific couple. Now, what determines jurisdiction? Clearly, it is not the fact that you got married in the Court’s area of jurisdiction. Let’s look at the law.
Section 2 of the Divorce Act 70 of 1979 states the following:
“A court shall have jurisdiction in a divorce action if the parties are or either of the parties is-
Well, there you have it. It does not mean that if you got married within the area of jurisdiction of the court, that automatically, that Court would have the jurisdiction to divorce you.
You or your spouse should at least be domiciled, or resided within that honorable court’s jurisdiction for a specific period. When we refer to domicile, we basically mean that you intend the specific location to be your permanent home. This is a simple definition. Now let us move on to the second issue. That is the irretrievable breakdown of the marriage.
It goes without saying, a court will not divorce a couple who is happily married. There has to be some problem in the marriage. Now let’s go straight into the law and find out when, or under what circumstances a Court of law may divorce you in South Africa.
According to section 4(1) of the Divorce Act:
“A court may grant a decree of divorce on the ground of irretrievable breakdown of a marriage if it is satisfied that the marriage relationship between the parties to the marriage has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between them.”
Section 4(3) of the Divorce Act then states:
“If it appears to the court that there is a reasonable possibility that the parties may become reconciled through marriage counsel, treatment or reflection, the court may postpone the proceedings in order that the parties may attempt a reconciliation.”
Considering the latter law, it is clear that the marriage should have broken down irretrievably, in other words, it cannot be saved. Furthermore, it should not appear to the court that reconciliation is possible. So moving forward, presuming that the court has jurisdiction and the marriage has irretrievably broken down, we can now deal with the aspect of a quick divorce. That is why you are reading this article? We shall start with what is required in order to institute divorce proceedings.
As would be obvious from the foregoing, only a court of law can dissolve a marriage. Therefore, one needs to follow the legal processes in place in order for a court to deal with your matter. In the case of a divorce, the process starts with the issuing of a summons. Basically, this is a document outlining who all the parties are and what the Plaintiff (the person instituting the divorce proceedings) wants from the court. The summons would be signed by the Court Registrar who would direct the Sherriff of the Court to serve it on the Defendant (the other party to the divorce).
It would also have attached to it, a particulars of claim, comprising of certain relevant information in order for the court and the other party to know what the reasons for the relief sought, or divorce is. This we deal with next.
In the case of a divorce summons, you will state who the parties are, when they got married, details of the minor children involved, and reasons for the breakdown of the marriage. With regard to the reasons for the breakdown of the marriage, you will state that for example, there is no longer any love and affection between the parties, and both parties wish to get divorced.
The latter information is stated in a document, called “particulars of claim”. This document is attached to the summons. The particulars of claim will then also outline the relief sought. For example, it will first state that you wish for a decree of divorce, and further what you wish in relation to care and contact in relation to the minor children, child maintenance, personal maintenance, the division of the joint estate, and who pays the legal fees. It is also wise for the parties to enter into a consent paper or settlement agreement. This we deal with next.
You should stipulate in the particulars of claim exactly what you wish the court to grant you. However, what is a good idea, if the divorce is undefended, to enter into a consent paper or settlement agreement. This document basically outlines what the parties agree upon in relation to the divorce. It deals with child custody, maintenance, and the division of the joint estate if it applies.
The parties would sign the consent paper or settlement agreement and it would be made an order of court should the court so grant it. Therefore, if you follow this route, the court would basically make an order stating that it grants a decree of divorce, incorporating the terms of the consent paper or settlement agreement.
The consent paper or settlement agreement may be entered into between the parties before divorce proceedings are instituted or after. If it is done before divorce proceedings are instituted, it is usually attached to the summons. Your prayers in your particulars of claim would basically be that you ask for a decree of divorce, incorporating the terms of the consent paper attached thereto.
Let us presume that the summons, particulars of claim and consent paper have been drafted, and all documents have been signed. It should then be taken to a court to be issued and a case number is allocated to it. The next step would be for the summons with all the relevant documents attached thereto to be served on the defendant. This would be the case even though the divorce is agreed upon.
Service of the divorce documents on the defendant would have to be done by the office of the sheriff. In other words, the sheriff would give a copy of the divorce papers to the other party, in this case, the defendant. A sheriff then provides a document called, “return of service”. Basically, it tells the court that he served the documents on the defendant.
The defendant would then have a period of ten (10) working days to decide whether or not to defend the divorce. This is stated in the summons. A reason for defending would be that he or she opposes the divorce, or don’t believe the contact arrangements are in the children’s best interests. Once the ten (10) working days have passed, the divorce may be set down for hearing.
Continuing with the example of a friendly divorce, once the ten (10) days have lapsed, and the defendant did not file a notice of his intention to defend the divorce action, the divorce can proceed on an undefended basis. The Plaintiff or the person who instituted the divorce proceedings may then set the divorce matter down for hearing on an undefended basis. If the divorce was instituted in the Western Cape High Court, it could be set-down within three (3) days. For example, if the ten (10) days have expired, The Plaintiff may file his notice of set-down the Monday before noon with the Registrar, to be heard on Wednesday. This is explained at the end of this article.
This is where this article becomes interesting. It is also possible under certain circumstances, for a defendant to file a waiver. Basically, the defendant would file a document stating that he waives his right to ten (10) days to decide whether or not he wants to defend the divorce. If a waiver is filed, and the court has no issue therewith, then the divorce can take place much sooner than ten (10) days. This we explain a bit more next.
Considering the above and, ensuring that all legal processes are in place, a divorce can be finalised very quickly and in certain circumstances, within a few days. As long as the court has jurisdiction to hear the matter and the marriage has broken down irretrievably, there is no reason why the divorce can’t take a maximum period of four weeks to finalise.
If, however, the divorce is urgent and undefended it is possible for the defendant to file a waiver advising the court that he has no issue with a divorce taking place within the ten (10) days given to him. His reason for this could also be that he and the Plaintiff entered into a Consent Paper and wants the divorce as well. In this case, the divorce could take three (3) days. This would apply in the following hypothetical example: