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The divorce procedure made easy.

 

Following our previous article, Understanding the divorce procedure, we would now like to guide you through the steps you need to take to do your own divorce. Please note that this a very basic guide as there are many different permutations with regards to divorces and we are available to assist you at any point with further legal advice. 

In order to start your divorce procedure, you will first need to draft a divorce summons. A divorce summons is a formal notification that a divorce is being requested and the terms of the divorce. Various examples of divorce summons can be obtained on the internet or from the courts. The content of the summons is very important and should be carefully thought through. 


If there are minor children involved, you will need to complete an Annexure “A” form, which can be obtained on the internet or from the courts. This form needs to be commissioned by a commissioner of oaths and once completed it must be attached to your summons, before the summons is submitted to court. A statistics form, which can also be obtained from the court, must also be completed and attached to the summons when you submit it. 


Once you have drafted the divorce summons, you will need to have it issued. This is done by taking the original and two copies of your summons (together with the Annexure A [if there are children], the statistics form, your original marriage certificate and a copy of your Ante-Nuptial Contract) to the closest high court or regional court. The registrar will then stamp the summons, allocate it a case number to it and open a file for it. 


After the divorce summons has been issued, you will need to take it to the sheriff of the court, in the area where your spouse lives or works. The sheriff will take the original summons from you, together with a copy, stamp your copy and give it back to you. The sheriff will then serve the summons on the defendant (your spouse) personally. Once the summons has been served on your spouse, the sheriff will return the original summons, together with a document confirming that the summons was served on your spouse to you. This document is called the “Return of Service” and is very important as the court requires proof that the summons was personally served on your spouse. Please keep this document in a safe place. 


Your spouse now has 10 working days to file a Notice of Intention to Defend, if they wish to defend or fight the divorce. We advise that, should your spouse choose to defend or fight the divorce, you obtain the guidance or services of either a mediator or an attorney specialising in family law. 


If your spouse chooses not to defend the divorce and you are able to reach an agreement on all the relevant issues, you will to need to draft a “Settlement Agreement”. If you have children, the signed Settlement Agreement must be taken to the Family Advocate’s office in your area for their approval of the Settlement Agreement. The court will not accept a Settlement Agreement if there are children involved unless the Settlement Agreement has been approved by the Family Advocate’s office. If the Family Advocate’s office does not approve of the Settlement Agreement, they will provide you with a document saying why. You then need to amend the Settlement Agreement accordingly. If they do approve of the Settlement Agreement, they will provide you with a document called an “Endorsement” confirming this. The Endorsement will need to be provided to the court at the time of finalising the divorce. 

Once the Settlement Agreement has been approved by the Family Advocate you can approach the court for a court date. 


You will then need to prepare a bundle compromising of the following documents for the court: 

  1. a. The original summons; 
  2. b. The original Marriage Certificate; 
  3. c. The original Ante-Nuptial Contract (if you are married out of community of property); 
  4. d. The sheriff’s original Return of Service; 
  5. e. The Notice of Intention to Defend (if there was one) 
  6. f. The Original Settlement Agreement; 
  7. g. The Original Family Advocate Endorsement; 


These documents should be provided to the court at least 5 days before the court date. Remember to keep a copy of all of the documents for yourself. 


On the day of the court date you and, preferably but not obligatory, your spouse need to go to court and appear before the magistrate or judge. Please take your identity document with you. The court will then help you finalise the divorce. Afterwards (normally a week or so later), you can collect your divorce order from the court. 


We hope that this article has provided you with some helpful information regarding the divorce procedure. If you need any further assistance in this regard, please email mouchanev@alanjoseatt.co.za. 


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