My spouse said that he/she won’t ‘give me a divorce’. What can I do? Your spouse can oppose the divorce, but it is the Court that grants a divorce, not your spouse. If you convince the court that the marital relationship has irretrievably broken down, the court can grant a decree of divorce even if your spouse does not want to get divorced.
There is a process, called a ‘rule 58 or rule 43’ application, whereby you can ask the court to give an order regarding the care of and access to the children and maintenance pending the finalisation of the divorce. You can even ask for a contribution to your legal costs.
How much does it cost?
In the case of an unopposed divorce (i.e. there is no dispute between yourself and your spouse about the divorce or what should happen), your fees are likely to be limited to a set fee for legal costs, as well as Sheriff’s fees and minor expenses such as transport, photocopies etc. Sheriff’s fees can vary widely, depending on the distance he has to travel and how many attempts he has to make at serving pleadings on the opposing party, but generally these fees would be a few hundred rand. Where a divorce is opposed, the costs become unpredictable and entirely dependant on the specifics of the case.
How long does it take?
Where a divorce is unopposed and there are no complications or children involved, it can sometimes be finalised in as little as four weeks.
Where a divorce is opposed, it can easily take two to three years, or more. In most cases, however, divorces get settled before the parties have to go to Court – even where the divorce started out as an opposed divorce. As soon as the parties in an opposed divorce reach a settlement agreement and the divorce becomes unopposed, it can again be possible to finalise the divorce in as little as four weeks.
What you need to do
Before you approach the Court to start divorce proceedings, you will should get certified copies of as many of the following documents as you can:
- Your identity document
- Your Ante-Nuptial Agreement, if any
- The children’s births certificates, if any and
- Your marriage certificate
Also make sure you have the following information handy:
- Your full names, surname, identity number, occupation and place of residence
- Your spouse’s full names, surname, identity number, occupation and place of residence
- Date when you got married and where the marriage took place
- Children’s full names, surnames, identity numbers and
- Comprehensive details of any funds (such as pension funds, retirement annuities and provident funds) which you or your spouse belongs to.
You may institute divorce proceedings in either a High Court or Magistrates’ Court (Regional Court).
This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)