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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 lawyer for an accrual calculatioin template (if married ANC with accrual), ,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 attractiving transfer dutieis
Ensure that pension fund assets are transferred smoothly
Minimisation of tax.
Negotiating which assets are transferred

Man and woman in front of a computer, working together and looking anxious

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.

Quote for Family Lawyer

Ask about do-it-yourself divorces here.

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Free legal newsletter

Do it yourself divorce

Substantial assets

How valuable is your time?

When is a DIY Divorce Feasible?

Step 1: collect Source documents

Step 2: collect key data

Step 3: which regional court has jurisdiction?

Step 4: Who is the Plaintiff & defendant?

Step 5: complete the combined summons

Personal details

Jurisdiction

DIY Divorce Papers

Other Divorce-related articles

Child-related divorce matters

Annexure A

Custody of children upon divorce

Child maintenance matters

Abduction & kidnapping of children

International divorces, children & overseas issues

Other child-divorce matters

Affairs

Assets/debt and divorce

Divorce & pension fund assets

Property and divorce

Life insurance, death & divorce

Divorce & future expenses

Marriage (COP vs ANC), cohabition and Universal partnerships

Divorce orders

Perjury & forgery

Divorce courts

Annulment instead of divorce

Quote for Family Lawyer

Ask about do-it-yourself divorces here.