Divorce Frequently Asked Questions | Family Law Attorneys in Randburg and Sandton

Divorce Frequently Asked Questions

Question1: How do you survive financially after divorce?

In most households, the standard of living drops after the divorce. The reason for this is that you used to have two incomes at your disposal to pay for the joint family expenses. However, you must now maintain your own home while your spouse maintains their own.

Consider where you are in life, post your divorce. Can you really afford to keep the luxury car and the big house, or do you need to downgrade? Prepare an actual budget and see what you can afford and what you just can’t anymore. 

If you are not working, carefully consider your options, do courses and be willing to better yourself to become more employable. Start searching for a job as soon as you can.

Mix with people who are financially secure and learn from them. You can even ask one or more of them to become your Mentor.

Have confidence in yourself. Divorce can cause you to doubt yourself. Work on your self-confidence and make an ongoing effort to believe in yourself. You will always be your biggest critic, but you can also be your own source of support.

Obtain financial advice from a Financial Planner and do not leave your finances ‘up in the air’ – deal with them.

Question 2: Can a Judge or Magistrate refuse to grant a decree of divorce?

A marriage may be dissolved by a Court on the following grounds:

  • the irretrievable breakdown of the marriage; or
  • the mental illness, or the continuous unconsciousness, of a Party to the marriage.

However, if one of the Parties wants a divorce, the Court Order will be granted. The South African divorce law states that when a marriage has irretrievably broken down and the marriage cannot be saved, the Parties may then get divorced. Therefore, if one Party believes that the marriage relationship has broken down irretrievably, then that is enough to get a divorce order granted.

The Judge or Magistrate does have the discretion to grant the divorce order or not grant the order, and can refer the Parties to Counselling. If Counselling fails, the Parties can continue the divorce on the same papers. This is however not seen in practice because people cannot be forced to reconcile.

In practice, if a divorce matter goes to Court, the Judge or Magistrate may have an issue on the hearing date when they are not satisfied with the paperwork, jurisdiction or for some other reason they deem fit. This may cause a delay in the divorce until that issue has been resolved.  The matter can then simply be set down for another day.

Question 3: Can I divorce my spouse without them knowing?

When you’re considering a divorce one of the most challenging aspects is to tell your spouse that you have decided to go ahead with a divorce. Our clients often ask us if it is necessary for them to inform their spouse, or if they can go ahead with the divorce without telling their spouse.

In short, the answer is no, you do not need to tell them, but they will naturally find out when the summons is served on them.

It usually is advisable to tell your spouse that you have decided to proceed with divorce before the summons is served on them. You can control this by selecting a time and place to tell your spouse that suits you.

The Summons must be personally served on your spouse by the Sheriff of the Court. The Sheriff cannot leave the summons at their home or office – it must be personal service.

Question 4: I do not know where my spouse lives, how do I get divorced?

If you do not know where to find your spouse and you want to proceed with the divorce, you can still go ahead with the divorce, the procedure is just more involved, and it takes a bit longer.

If you believe that your spouse is in the Republic of South Africa, you can proceed with an Application for Substituted Service.

If your spouse lives in another Country, you must proceed by way of Edictal Citation.

We deal in detail with Substituted Service and Edictal Citation on our website, and you can get more information on these processes by clicking on them.

Question 5: How can I get a divorce without my spouse signing?

There is nothing to be concerned about. The serving of a divorce summons in South Africa is straightforward – after the Court has issued the Summons, the Summons together with the Particulars of Claim and any annexures are sent to the Sheriff of the Court for service.

A divorce summons must be personally served on your spouse by the Sheriff of the Court to be given effect to (with a few exceptions, such as where the whereabouts of your spouse is unknown, and the Court granted an order for substituted service).  

It is not necessary for your spouse to sign for the documents when the Sheriff hands the Court documents to them. The Sheriff will merely supply the Court with a “Return of Service” confirming that the summons has been served on your spouse.

Question 6: The Best Way to Ask Your Spouse for a Divorce

You’ve tried to make things work between you and your spouse for many years, but you realise that your marriage is not working. You are done and want to get out of your marriage.

But how do you bring up the subject of the divorce with your spouse without overwhelming them or triggering an all-out war?

  • Find a good time and place for the discussion when you and your spouse are alone and have time to discuss the matter. Make sure that you will not be
    interrupted by your children, other family or friends.
  • Does your spouse feel the same as you or will the divorce be unexpected? Knowing where your spouse is emotionally will help you to prepare for this discussion.
  • Have a civil conversation; do not play the ‘blame game’. Just discuss the fact that the marriage is over and that it is time to move on.
  • Do not engage in too many discussions before you have seen your Attorney.
  • Suggest that both of you seek professional assistance from a Psychologist to help you handle and deal with your emotions.

There is no easy answer as to how to tell your spouse that you want a divorce. But not informing your spouse about it will probably make your spouse confrontational.  Imagine that your spouse is not aware of your decision to move on and the Sheriff of the Court arrives at their work to serve the divorce summons without them expecting it? 

Question 7: Divorce in South Africa: who gets what?

South African divorce law is not fault based. That essentially means that the assets are divided in terms of the marital regime at the time of divorce.

If you are married in community of property, only one estate exists, and you deduct the total assets and less the total liabilities to determine the value of the estate.

Should you be married in terms of an Antenuptial Agreement that includes the accrual, then the nett value of both estates must be determined, and the difference is divided on the dissolution of the marriage.

An Antenuptial Agreement that excludes the accrual means that each spouse keeps his or her own possessions.

Question 8: My divorce is dragging out, is it my Attorney’s fault?

Divorces can take very long, even years, to be finalised. It often is a very exasperating experience when a divorce is complicated or highly contested.

Many issues can be raised in a divorce, from child maintenance to the division of the estate.  Sometimes, a spouse may intentionally delay a divorce for various reasons.

In some cases, it may be your own Divorce Lawyer that is not doing their job as fast as they should. It is usually easy to determine if this is the case as you can have a sit-down with your Attorney and ask them to explain the process to you.

You can then ask them for the time periods as set out in the Rules of Court and see if they are the cause of the delay. You are entitled to see all communications, notices and pleadings that are filed.

Alternatively, you can take a copy of your file to another Attorney for a review. You can even have a discussion with the Senior Partner of the firm that is assisting you if you believe that your Attorney is delaying the process unnecessarily.

You will probably find that the delays are due to time periods that must be complied with. If you are waiting for your spouse to sign a settlement agreement or make an offer to settle, there is very little that your Attorney can do to get them to resolve the matter.

Question 9: How long will my divorce take?

It depends on whether your divorce is opposed or unopposed. An unopposed, or uncontested, divorce takes about 4 – 6 weeks from start to finish, depending in what Court you issue your summons.

Opposed, or contested divorces can take several years to be finalised. Again, the Court that you issue your divorce summons out of will have a significant influence on how long it takes your divorce to be finalised.

In general, an opposed divorce can be finalised in a much shorter period in a Regional Court than in the High Court.