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A divorce action is instituted by the issuing of a summons. You can divorce in either the Regional Court of the Magistrate Court having jurisdiction in your area or in the High Court. To start the divorce process you need to serve a Summons. A divorce summons is unique in that it must be served personally on the defendant by the sheriff of the court.
A court has jurisdiction in a divorce action if one or both parties are:
•domiciled in the area of jurisdiction of the court on the date on which the action is instituted; or
•ordinarily resident in the area of jurisdiction of the court on the said date and has/have been ordinarily resident in South Africa for a period of not less than one year immediately prior to that date.
There are typically two types of divorces, the contested or opposed divorce and the uncontested or unopposed. The latter type of divorce is the best and most cost effective for all parties concerned. An uncontested divorce occurs when: (a) there are no disagreements between you and your spouse over any financial or divorce-related issues (i.e., child custody and support, division of marital property or spousal support); and (b) your spouse either agrees to the divorce, or fails to appear in the divorce action. An uncontested divorce can be finalized in as little as 4 weeks. If a divorce is contested it may take between 2 – 3 years, but most contested divorces do settle long before they go on trial.
In South Africa, the marital regime of the parties determines how the assets will be divided upon dissolution of the marriage, the assets being those at the time of the divorce. In South Africa, we have a ‘no fault’ system of divorce, meaning that a divorce will be granted if one of the parties believes that there has been an ‘irretrievable breakdown of the marriage relationship’ and that there are no reasonable prospects of restoring it. Therefore, a marriage can be dissolved even if one of the parties does not wish to get divorced
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