Uncontested divorce in South Africa: steps and timeline.

What makes a divorce uncontested?

South African courts grant a divorce on the basis that the marriage has broken down irretrievably. A divorce is uncontested when both spouses agree that the marriage is over and agree on all the consequences of ending it: how assets and debts are divided, whether any maintenance is paid, and the arrangements for any children.

That agreement is recorded in a written settlement agreement, which the court is asked to make an order of court.

What the settlement agreement covers

• Division of assets and debts: how the property is divided, in line with your marital property system.
• Retirement funds: whether a portion of either spouse's pension interest is awarded to the other.
• Spousal maintenance: whether either spouse pays maintenance to the other, and for how long.
• Children: care and contact arrangements, usually in a parenting plan, and child maintenance, including school fees and medical aid.
• Practical matters: for example who keeps the home, vehicles and household contents, and who pays which accounts.

A clear, complete settlement agreement prevents disputes later. It is worth taking the time to get the detail right, especially on maintenance and children.

When there are minor children

A court will not grant a divorce until it is satisfied that the arrangements for minor children are in their best interests. The Office of the Family Advocate may review the parenting plan and the arrangements for care, contact and maintenance before the hearing. Where both parents have agreed on a sensible parenting plan, this step is usually straightforward.

The steps in an uncontested divorce

1. Consultation. An attorney takes instructions and checks that the divorce is genuinely uncontested.
2. Drafting. The summons and settlement agreement (and a parenting plan, if there are children) are drafted and signed by both spouses.
3. Issue and service. The summons is issued at court and served on the other spouse, usually by the Sheriff.
4. No defence. Because the spouses agree, the other spouse does not defend the action, and the matter can proceed as an unopposed divorce.
5. Family Advocate. Where there are minor children, the arrangements are submitted for review where required.
6. Hearing. The matter is set down for hearing. Usually only the plaintiff attends, briefly, to confirm the breakdown of the marriage and the settlement agreement.
7. Decree of divorce. The court grants the divorce and makes the settlement agreement an order of court.

How long does it take?

An uncontested divorce is usually much quicker than a contested one. The overall time depends mainly on how quickly the settlement agreement is finalised and signed, on service of the summons, on the Family Advocate's review where there are children, and on the availability of dates on the court roll. Your attorney can give you a realistic estimate for your court once the documents are ready.

Which court hears the divorce?

Divorces can be heard in the Regional Courts and in the High Court. Most uncontested divorces are heard in the Regional Court, which is generally more accessible and less costly. Your attorney will advise which court is appropriate.

When an uncontested divorce becomes contested

If either spouse changes their mind, or a dispute arises about any issue, the divorce becomes contested. The other spouse can then defend the action, and the matter follows the longer contested process. This is one reason it pays to resolve all the issues properly before the summons is issued.

Practical tips

• List all assets, debts, policies and retirement funds before negotiating, so nothing is left out of the agreement.
• Be specific about child maintenance, including how it increases each year and who pays school fees and medical costs.
• Think about the children's routine, school holidays and special days when drafting the parenting plan.
• Keep copies of the signed settlement agreement and the decree of divorce in a safe place.