What is divorce?

A divorce is a legal separation of a couple. If you have a civil marriage your divorce will be dissolved using the Divorce Act. Marriages in terms of African Customary Law are ended using civil. This means that the marriage will be dissolved using the Divorce Act, but certain conditions may apply. 

Who qualifies for a divorce?

You need a reason to get divorced.  In terms of the Divorce Act, a divorce can in the following circumstances:

• There has been an “irretrievable breakdown” of the relationship, which basically means you have worked on the relationship and there is no chance of you resolving or repairing the marriage. 
• They can be due to various reasons is not a closed listed, important to note no consent is required from your spouse to divorce. 
• One partner has been declared a habitual criminal and is undergoing imprisonment as a result of a sentence instructed by a court.
• You can get a divorce if your partner has been in a mental health facility for at least two years and doctors don’t think they will ever recover.
• Your partner has been unconscious for at least 6 months and doctors believe they will never recover.

If you meet the criteria above, you can follow these easy steps to ensure the process runs as smoothly as possible:

Step 1: Get legal advice

If you’re considering a divorce, get help from a lawyer who specialises in divorce.
There are many rules on divorce. Your marriage agreement may influence your divorce process. For instance, if you’re married in community of property, your shared property may be divided equally between you and your partner. It is recommended that you seek legal advice before commencing with a divorce in order to make sure you obtain everything you have a right too and to make sure your documents are correctly formulated.

Step 2: Prepare your documents

When applying for a divorce, you will need certified copies of the following documents:

• Your official South African identity document,
• Marriage certificate,
• Your children’s birth certificates (if any),
• Your ante-nuptial agreement (if any).

Step 3: Applying for divorce

There are 2 types of divorce; uncontested/unopposed divorces and contested/opposed divorces. Uncontested divorces are easier because both parties agree to the divorce and the divorce settlement.

You can apply directly with the court either at the High Court or Regional Court (not recommended) 

Alternatively, your divorce attorney will prepare all your documents and approach the Court to apply on your behalf. This is highly recommended as your documents will be correctly drafted, it will save you time and you do not have to run around on your own.

Getting help
You don’t need to get through the challenges of going through a divorce, on your own. Tim van Rooyen and Associates are here to help you. Feel free to contact us for more information.