All the pros and cons about divorce processes in South Africa
Blame it on empty nest syndrome, financial woes or the advent of social media which has made infidelity that much easier – but a number of South African marriages never make it to their 10th anniversary.
A report released by Statistics South Africa (Stats SA) last year said four out of 10 marriages end in divorce.
According to Stats SA, a total of 25,326 divorces were granted in the country in 2016, with the highest number being amongst couples who had been married for five to nine years.
Hiring a lawyer can cost tens of thousands of rands, tempting some to attempt a do-it-yourself divorce which works out far cheaper. With the latter option, fees are limited to the Sheriff's fees, transport costs and photocopies – according to Legal Wise.
East London-based attorney Tamazin Coutts said while this was tempting, maintenance and child visitation issues will not be properly ironed out.
“Every divorce is tailor-made and every party’s circumstances are different so you may think you should get the same settlement as your neighbour next door but it’s not necessarily the case,” she said.
“I don’t mind people just going straight to court because there may be a financial problem but when you do, you need to understand that the court is burdened with hundreds of divorce cases. You’re not going to get the degree of attention that you need.”
She cautioned that a divorce decree follows one for the rest of their life.
“It’s not something that you can just easily walk away from so make sure that your maintenance and access to children is properly defined. The court does not do that for you. Yes, it costs just a few hundreds to get divorced via this route but the chances are that you’re going to spend R150,000 fixing the divorce agreement.”
Coutts provided the steps involved when divorce is through an attorney. The first step is drafting a letter to the other party. The next step is to jot down the client’s issues.
A settlement proposal is put out immediately. If that is rejected, a summons will be issued which will be served by the Sheriff. The opponent or defendant will then get an opportunity to oppose the summons through a plea, which the other party can respond to.
“Then we generally go through a process of a whole lot of swapping of court documents. The court will decide how this should be done, there is a process which has to be followed for this.
“All the time that this is happening, we’re negotiating on the side. One thing I can say is that this process is expensive,” she explained.
If at any point during the process the two parties reach a settlement agreement, it’s put down on the court roll as an uncontested divorce. If not settled, it goes to trial, which Coutts said comes with a host of problems.
“It will take a year or two to get the matter onto the trial roll, from start to finish, presuming that everybody has done the right thing. It can drag if you’re fighting over nonsense, if someone is not co-operative or if the Sheriff does not serve papers,” she said.
While it’s more expensive to get a divorce in the high court, it tends to be more efficient than the regional court as the latter has a far bigger case load. “You can make the choice,” Coutts said, adding that it’s the same process without an attorney, with the courts guiding you every step of the way.
Many, often times women, also attempt to tackle the maintenance court without an attorney.
What are the correct steps one should follow?
The first step here is going down to court to lodge an application. This will either be a new application for a new order or a substitution application to change an order.
A date is then issued for your first appearance. The date can be six to eight weeks away depending on how full the court roll is.
A subpoena is then served on the respondent to appear in court. That will be the first appearance date.
“On this day they just check that everybody has been served and they ask for financial documents. The financial enquiry is the meeting of the two parties with the maintenance officer which is where everybody gets stuck.
“The maintenance officers will make an observation based on the financial documents. Many women may not agree with these findings, but may think this is the last step.
“But the women can say ‘I don’t agree with you for these reasons, I would like to go to court’.”
The matter will then go to trial where the magistrate will make an enquiry with the maintenance officer and you will get an opportunity to give evidence. A judgment will then be issued.