Do it yourself divorce
The option is always open to a person to approach the court directly and attempt to handle his/her divorce himself/herself. In Cape Town the Southern Divorce Court is at 90 Plein Street, on the 6th floor. On attending there you would be expected to wait in a packed waiting room, and would need your marriage certificate and identity document, and if there is an Antenuptial contract you would be expected to bring that too.
You would then after a long wait be advised by officials at the court, who may or may not have any legal qualifications. A Summons will be filled in and then you would be expected to deliver it to the relevant sheriff for service. Once it is served your partner would respond to it normally, and the matter would be set down for trial eventually.
The problem however very often arises that members of the public do not know the court rules, and are incorrectly advised at the court as to what their legal options are. A person who believes that he/she will save money by doing the divorce himself/herself may end up losing hundreds of thousands of rand in the end.
Substantial assets
If the assets are substantial, i.e. if there is a fixed property and a pension or any other assets it is definitely worth while to spend a bit of money and consult an attorney to handle at least some aspects of the divorce. Ask your lawyers they provide an for an accrual calculation template (if married ANC with accrual) for free,and fill as much as you can in by yourself; then use your lawyer's time to:
- Assist with the valuation of tricky assets, like pension interest and any associated tax
- Ensure that any transfer of property occurs without attracting transfer duties; and remember to factor the transfer costs which there are into your calculation (to effect the transfer you will have to hire a conveyancing attorney).
- Ensure that pension fund assets are transferred smoothly
- Minimisation of tax.
- Negotiating which assets are transferred
How valuable is your time?
The time that would be spent at court waiting in the waiting rooms to be assisted, and time away from work, would just not be worth it at the end of the day. Parties who are represented at court are given preference to parties who are unrepresented. Your attorney would also be able to get a court date quicker than if you tried to do so yourself. The attorney would also know exactly what the magistrate requires and what should be in the court file in order to get the divorce through.
All kinds of issues can crop up in the middle of a divorce case, and it is worth while to have an attorney on your side. An example of this would be what to do if the other party enters an appearance to defend but does nothing further after that. Your attorney would then advise you to demand a plea within ten days. If however you were representing yourself, you would need to spend a day at court normally to obtain such information.
It is also a lot easier for a magistrate to make a decision on a matter if both parties have representation, as if you are unrepresented the magistrate will have to play the roll of attorney as well as judicial officer.
I have personally dealt with many cases where somebody has started divorce proceedings himself/herself, and half way through come to consult me. I very often have to start afresh, as the correct legal advise was not given to my client. I would strongly urge people to consult an attorney before a divorce.
When is a DIY Divorce Feasible?
A DIY divorce could be an option if:
- The marriage took place in South Africa.
- Both spouses agree and do not contest the divorce.
- The whereabouts and physical addresses of both spouses are known.
- There are no children involved.
- There are minimal assets to divide (the poorer the better for once!).
- No international assets are part of the equation, or other overseas considerations.
- The duration of the marriage is relatively short.
- The marriage was under the 'out of community of property without accrual' arrangement.
- You are comfortable with administrative tasks.
- There are no other complicating factors.
Step 1: collect Source documents
Ensure that you have certified copies of the following important documents:
- ID documents of both spouses
- If there are children involved, their birth certificates.
- If you were married out of community of property, your ANC (ante-nuptial contract).
- The marriage certificate
Step 2: collect key data
You will need to know the following:
- Date of marriage
- Where the marriage took place
- For both spouses:
- Full names and surname
- ID number
- Occupation
- Physical address
- For each child:
- Full name and surname
- ID number
- Full details of any of the following which either spouse belongs to:
- Retirement annuity funds
- Pension Funds
- Provident funds
Step 3: which regional court has jurisdiction?
Find out what the regional court is which has jurisdiction (you can also approach the High Court, but it is more expensive not as suited to a simple, amicable, do-it-yourself divorce). For example, it'll be the regional court where either or both spouses have their permanent homes in the area of the court's jurisdiction.
As it is critical that you approach the correct court, it is worthwhile to phone the Registrar to check that they have jurisdiction.
Step 4: Who is the Plaintiff & defendant?
If you are the one instituting the divorce action, then you are the "Plaintiff" and your spouse is the "Defendant".
Step 5: complete the combined summons
There is a prescribed form on which to complete the combined summons. This is obtainable from the Registrar of the court for free. It is critical that no mistakes are made, so double-check everything.
Personal details
Replace the bolded items with your personal details:
- “The Plaintiff is {Full names & Surname}, ID number: {your identity number}, a major {male / female} {profession}, resident at {address} (hereinafter called the Plaintiff)(see attached identity document marked as Annexure 1 ).”
Replace the bolded items with your spouse's personal details:
- “The Defendant is {Full Names & Surname}, ID number: {your spouse’s identity number}, a major {male / female} {profession}, resident at {address} (hereinafter called the Defendant).”
Jurisdiction
Use one of these 2 alternative wordings:
- “The above mentioned Honourable Court has jurisdiction in this matter as {both parties/ the Plaintiff/ the Defendant} {is/ are} domiciled within the jurisdiction area of the court as stipulated in terms of section 2(1) of the Divorce Act, act 70 of 1979.”
- ” The above mentioned Honourable Court has jurisdiction in this matter as {both parties/ the Plaintiff/ the Defendant} {is/ are} ordinarily resident in the jurisdiction area of the court and {has /have} been ordinarily resident in the Republic of South Africa for not less than a year at the time of the institution of these proceedings as stipulated in section 2(1) of the Divorce Act, act 70 of 1979.”
DIY Divorce Papers
The Cape Town magistrate’s court can give you the document you will need to fill in and explain how to divorce without a lawyer.
Other Divorce-related articles
Child-related divorce matters
Can a "band-aid baby" save a marriage?
Annexure A
If there are minor children involved, the divorce summons must have an Annexure A attached to it.
Custody of children upon divorce
Jurisdiction in child custody matter
Joint decisions with respect to minor children
Using Rule 43 to apply for interim custody entitlement
Child custody for the father
When a child won't see his/her father or mother
An unborn child when divorcing
Challenging the family advocate report
Child maintenance matters
Maintenance & custody of adopteed children
Maintenance for the unborn child
Children suing for maintenance
Abduction & kidnapping of children
Abduction of a minor - Latest case law
The kidnapping of minor children by a parent
The international abduction of children from South Africa.
International divorces, children & overseas issues
Divorce when the children & spouse are overseas
When your child and ex move overseas - keeping contact
Other child-divorce matters
Handicapped children & the divorce rate
National register of those unsuited to working with children
Affairs
Affairs and their impact on divorce settlements.
Assets/debt and divorce
The duty to disclose your financials when divorcing.
Insufficent disclosure from a spouse on their assets/liabilities; the section 7 notice remedy (in terms of the Matrimonial Property Act)
Division of the joint estate in the event of a divorce.
- Antenuptial contracts
- When parties cannot agree on the accrual calculation; the court may appointment a referee to assist with the accrual calculation
- When parties cannot decide how to divvy the assets : The court may nominate someone to collect, realise and divide the estate (called a liquidator, receiver or curator).
- How affairs impact the division of assets on divorce
Movable assets - what to take if you move out.
Protection of assets using a trust
Divorce & pension fund assets
Divorce and pension fund payouts
Get your info directly from spouse's pension fund, not indirectly from your spouse.
Undisclosed Pension Interest at divorce results in amendment to divorce order
Pension interest in the accrual calculation, and the related tax liability
State pension fund is unconstitutional
Navy pension payout post-divorce
Property and divorce
Be careful with how you word the clauses about selling the property upon divorce
Should you move out of the matrimonial house prior to divorce?
Property in your spouse's name
When parents have rights to stay at the property you want to sell on divorce.
Life insurance, death & divorce
Life insurance & divorce in South Africa
Death in the middle of divorce
Divorce & future expenses
Divorce & Future medical expenses
Marriage (COP vs ANC), cohabition and Universal partnerships
Marriage in community of property
Short definition of a marriage in community of property
Forfeiture of benefits of marriage in community of property - Wijker v Wijker 1993
Kooverjee v Kooverjee
Rights for those in Universal partnerships
- Universal partnership: Asset sharing
- The distribution of assets from the dissolution of universal partnerships
Treatise on the Contract of Partnership: By Pothier ; with the Civil Code and Code of Commerce ... (1854)
Null declaration of customary union
Divorce orders
Vary or rescind a divorce order
Change divorce order without court application
Non-compliance with a divorce order
Spangenberg & Another vs De Waal; Rule 43 order is set aside
Perjury & forgery
Divorce: Forging spouse's signature
Divorce courts
Divorce cases in the Cape High Court
Annulment instead of divorce
What is annulment of a marriage?
What are the grounds for annulment of a marriage?
Family, Estate & notarial legal services