Divorce & Maintenance

Learn about the divorce procedure and understand the different ways you should approach a divorce, mediation in the process of divorce and the application for spousal maintenance after divorce.

General

Divorces can be very painful to go through, but it is important to understand the process and requirements before going forward with one. A divorce refers to the legal dissolution of a marriage or civil union. In South Africa, there are two main types of divorce:

  1. An uncontested divorce; and 
  2. A contested divorce. 

In order to get a divorce, parties will need the following documents: 

  1. Their ID documents; 
  2. Their marriage certificate;
  3. Proof of residence; and
  4. Their Ante-nuptial contact, if spouses are married out of community of property. 

These documents may be required, based on the content of the divorce application:

  1. An evaluation of immovable property; 
  2. A maintenance plan; and/or
  3. List of assets and liabilities. 

Types of Divorce

Uncontested Divorce

This the quickest and least expensive option, where parties will work together to come to an agreement on the terms of the divorce. On deciding to get divorced, the parties will need to agree on a settlement agreement, which is to be signed by both parties, and determine various issues relating to their marriage. For instance, the division of the estate, the custody of the children (if any)and the cost of child and/or spousal maintenance, among others. Once agreed and signed, a Court will confirm this agreement and make it an order of Court. 

Mediated Divorce

A mediated divorce is more costly than an uncontested divorce and time consuming. This type of divorce occurs when parties are unable to an agreement on a divorce settlement, but do not want to fight each other over their disagreements. In such instances, the services of attorneys and a mediator is needed to assist the parties with the mediation and negotiate on various issues related to their marriage and its dissolution. 

A mediator is an impartial trained professional with the skills to assist parties to focus and reach a reasonable settlement, once the mediator successfully assists with the divorce settlement terms, the attorney will then draft an official settlement agreement which both spouses will sign, and the agreement will be confirmed in court affected with an order.

Contested divorce 

This is a very time-consuming process with legal costs. A contested divorce occurs when parties cannot agree to the terms and conditions of their divorce and decide to go to court to settle the matter. During this process, both spouses appear in court and the court will decide on the terms of their divorce. 

Spousal Maintenance

Spousal maintenance refers to a maintenance that one has to pay to their former spouse following a divorce, where needed.

What factors do the courts consider? 

  1. The parties existing and prospective means;
  2. The parties’ financial needs and obligations;
  3. The parties’ respective earnings;
  4. The duration of the marriage;
  5. The parties’ standard of living;
  6. The defendant's conduct in relation to the breakdown of the marital relationship; and
  7. Any other factors. 

The court will take these factors into consideration and make an order granting or refusing maintenance.