Divorce Legal Advice

Legal Advice Regarding Grounds for Divorce in South Africa

If you are planning to get divorced, it is essential to first seek legal advice before taking any steps. We recommend specifically seeking legal advice regarding divorce from attorneys specialising in family law matters.

To get you started, we take a look at irretrievable breakdown of the marriage as allowable grounds for divorce in South Africa.  It is not about whose fault the breakdown is, but rather whether the relationship of the couple has deteriorated to a level where there is no reasonable chance of restoring the relationship.

Evidence of Irretrievable Breakdown

We recommend seeking expert legal advice regarding the allowable reasons or circumstances for the irretrievable breakdown of a marriage. It is more complex than it may seem at first.

If the parties to the marriage, for instance, have been separated for a prolonged period exceeding at least twelve months immediately before the summons for divorce has been issued, then it is an allowable reason. This also pertains to couples that have not lived together as husband and wife for a period of twelve months or longer immediately prior to the issuing of the divorce summons.

The court also accepts circumstances such as the defendant in the divorce case having committed adultery, with the plaintiff not seeing it possible to continue with the relationship because of the defendant’s adultery, or where the defendant has been declared a habitual criminal and has been in prison.

Regardless of the above, the court can still postpone the divorce proceedings or even not grant the divorce order at all, if the court finds that there is reasonable cause to believe that the parties to the marriage may still reconcile if they undergo marriage counselling.

Withdrawal of the Divorce Summons

Should the couple still not be reconciled after a determined period, then they will be allowed to continue with the divorce summons. It is thus important to understand that if there is any possibility of the couple getting back together in a normal marriage, then the court will not grant the divorce order. That being said, even if the couple lives together again after the issuing of the divorce summons, it doesn’t mean that the divorce proceedings come to an end. If the couple does decide to reconcile, they must ensure the full withdrawal of the divorce summons.

The above must be done by means of a notice of withdrawal of the summons, which the plaintiff must serve on the defendant or their attorney.

However, if not done, the plaintiff can still get a divorce order by default, without the knowledge of the defendant. Keep in mind that should this be the case, the defendant can ask the court to set aside the default divorce order.

More About Default Divorce

If the defendant is served with a summons for divorce and doesn’t respond, the court grants a divorce by default, which is a type of uncontested divorce. The plaintiff, in this case, prepares the divorce summons, which sets out the claims without assistance from a lawyer. The summons is served by a Sheriff of the Court, and it includes the number of days within which the defendant must respond with a notice to contest the divorce.

If no response is received within the allowable period, the plaintiff requests the court to conclude the divorce. As such, only the plaintiff has to appear in court. Although an attorney is not needed, it is certainly recommended to get legal advice, even if it is for a divorce by default.

Also keep in mind that the court may demand a notice of set down to be served on the defendant by means of registered mail or in person.

The notice of set down is basically a document that stipulates the date of the court hearing. In this case, it is recommended to contact the defendant to find out why there has been no response, as the defendant can attempt to set the divorce order aside based on non-delivery or improper delivery of the summons as the reason for not responding in the allowable period.

What Next?

Don’t rely on hearsay or speculation when it comes to divorce proceedings. Make use of our attorneys and get legal advice to avoid pitfalls and delays in the divorce proceedings.

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