How Long Does Uncontested Divorce Take in South Africa?
Why More South Africans Are Opting to Save Time and Money Through Uncontested Divorce
Whether a couple is in mutual agreement about a split or not, divorce is never easy or seamless. It is not uncommon to experience profound feelings of loss and grief, and even those with a strong emotional support system may feel caught by surprise at the lifestyle changes that take place at the beginning of the separation. Parting ways amicably can be a difficult feat for some couples, as their home life, financial status, and parenting ideas both look very different. The complex web human beings weave during a relationship means that for many, divorces are exceptionally costly – both emotionally and financially.
When possible, an uncontested divorce alleviates much of the burden of strife and is a preferred option for plenty of couples. Below, we explore why uncontested divorces save on money and time, how long they usually take, and how our team of attorneys in Pretoria can help.
When You Are Entitled to a Divorce
It is important to understand that one party in a relationship does not need the permission of their spouse to get a divorce. Even if one spouse is unwilling to follow through with a legal divorce, the other can still have a divorce granted without their spouse’s consent. The South African “no-fault” system of divorce means that if one or both parties believe there has been an irretrievable breakdown of the relationship with no foreseeable way to restore it, this is grounds enough for divorce. You are entitled to divorce your partner if you can prove in court that you can no longer reside with your partner and that resolving differences is reasonably impossible. If one spouse is mentally ill or continually unconscious, the other is also entitled to a divorce.
Starting the Process
In South Africa, there is no such thing as “legal separation”, even if spouses have been living apart – the law here is clear that the couple is still married. Special circumstances do allow for a marriage annulment. An annulment dissolves the marriage in the eyes of the law and declares the marriage null and void by wiping it off the record. Starting the process of divorce entails having a summons served to the defendant in person by the sheriff of the court. This summons needs to make provision for factors such as division of estate – either by previously agreed-upon terms or a request of the court to divide the joint estate or enforce ANC (antenuptial contract) provisions. Both civil and customary marriages need to be dissolved by the court too. In the case of a default divorce, the defendant fails to respond to their court summons, in which case their spouse can apply to the High Court to add it to the roll. The High Court then decides on behalf of the couple to end the marriage.
The Difference Between Contested and Uncontested Divorce
Within all South African provinces, there are two main types of divorce, namely contested (opposed) and uncontested (unopposed), and each has its own set of proceedings.
When possible, an uncontested divorce is usually the better option. Here, both spouses work together to agree on the terms of the settlement. Both parties work with the same, unbiased attorney who offers impartial legal counsel and assistance. During an uncontested divorce, both parties come into an agreement before the proceedings when it comes to the division of their assets, as well as contact, care, and maintenance of minor children. Other topics to agree upon include asset and debt allocation, pension fund redistribution, and in some cases, spousal support. Finances, of course, are not always readily agreed upon, which is precisely why so many divorces end up being contested. After the attorney assists with drafting a settlement agreement, both parties sign and enter into this agreement, which is then made an order of the court. During an uncontested divorce, there is no need for a formal trial, and only the plaintiff will need to make a court appearance.
Contested divorces, on the other hand, consist of various stages, including pleadings and counterclaims, the application and establishment of a trial date, the document discovery process, conferencing before trial, the trial itself, and the final ruling or judgement. If, even with legal aid, spouses cannot arrive at an agreement, it is the court who must then adjudicate the dispute in the end.
How Long Contested and Uncontested Divorce Takes in South Africa
As seen above, contested divorces involve seemingly endless legal wrangling. This type of disagreement is challenging to navigate because both spouses often feel as though they are being unfairly treated and deserve more compromise from the other party. Tensions may also run high due to the nature of the relationship, which means that emotion fuels the overall dispute. While most contested divorces do settle before the need for a trial, they can take up to two to three years of grappling – this costs a lot in legal fees and is highly emotionally taxing (especially if children are involved). An uncontested divorce, on the other hand, is referred to as “simple divorce” because the process is much more straightforward. While the separation itself might not be amicable, it still saves on money and time. In fact, uncontested divorces can be finalised in as little as four weeks in South Africa.
How Our Team of Pretoria Attorneys Can Help You
Our Pretoria firm here at Riëtte Oosthuizen Attorneys was first established in the year 2000, which means we have two decades of experience when it comes to assisting clients in need. We specialise in all matters pertaining to Family Law and Personal Injury Law, and represent clients across various industries, professions, and personal circumstances. Our experience in cases involving children and parental rights and responsibilities means we understand the complex issues surrounding Family Law and divorce in South Africa. We handle issues that include contested and uncontested divorce, divorce mediation, same-sex couple divorces, interim divorce matters including Rule 43 applications and applications concerning domestic violence, various marital regimes and their division, and the valuation and distribution of all types of marital property and/or assets. We have an intimate understanding of the Children’s Act 38 of 2005 and how it pertains to divorce cases, and we also handle issues of care, maintenance, residence, and contact.
Whether your divorce involves complex financial, parental, or even business matters, we are here to guide you through the process. For legal services centred on excellence and integrity, contact us today.