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Divorce and family law

Divorce is a court process, not a form to sign. We prepare and serve divorce summons, negotiate settlement agreements, and work with the Office of the Family Advocate when children are involved.

What we handle

  • Contested and uncontested divorces
  • Settlement agreements
  • Parenting plans, care and contact arrangements
  • Division of the joint estate, accrual and pension interests
  • The mediation notice now required in divorce actions

Bring to your consultation: your original marriage certificate (or a copy certified by Home Affairs), any antenuptial contract, and your children’s details.

How a divorce works

  1. Consultation

    We hear your situation, check your documents and explain your options, including whether your divorce is likely to be opposed.

  2. Summons is issued

    We draft the divorce summons and the particulars of your claim, and issue them at court.

  3. The sheriff serves your spouse

    Service must be done by the sheriff, who files a return of service. Your spouse’s signature isn’t needed.

  4. Your spouse responds, or doesn’t

    Your spouse can defend the divorce, negotiate a settlement, or do nothing. Both sides must also say in a notice whether they agree to try mediation.

  5. Settlement and the children

    Where possible, we negotiate a written settlement agreement. If there are minor children, a parenting plan is prepared and, ideally, endorsed by the Family Advocate.

  6. Court

    An agreed or undefended divorce goes on the unopposed roll. A defended divorce goes to trial if it can’t be settled.

  7. Decree of divorce

    The court grants the decree, and the settlement agreement or court order sets out who gets what and how the children will be cared for.

Every divorce is different. At your consultation we’ll tell you which of these steps apply to you and roughly how long they take.

Your marriage and property

  • Married in community of property

    You share one joint estate. On divorce it is generally divided equally, unless the court orders otherwise or you agree differently.

  • Out of community, with accrual

    You signed an antenuptial contract and kept separate estates, but the spouse whose estate grew less during the marriage can claim a share of the difference in growth. For contracts signed after 1 November 1984, accrual applies unless the contract excludes it.

  • Out of community, without accrual

    Your antenuptial contract excluded accrual. Each spouse generally keeps their own estate.

Pensions. A pension interest can count as part of the estate for the divorce. The divorce order must deal with it clearly for the fund to pay out the other spouse’s share.

General information, not advice on your matter.

Know your rights

  • Myth: My spouse won’t sign, so I can’t get divorced.

    Fact: No signature is needed. Once the summons has been properly served by the sheriff and your spouse doesn’t respond, the matter can be set down on the unopposed roll.

  • Myth: You need an attorney to get divorced.

    Fact: It isn’t compulsory, but it is wise when there are children, a joint estate, pension interests or an accrual claim to sort out.

  • Myth: The Family Advocate will cost me money.

    Fact: The Family Advocate’s services are free of charge.

  • Myth: A divorce is final once we sign the settlement.

    Fact: Not yet. The settlement only takes effect when the court grants the decree of divorce and makes the agreement an order of court.

  • Myth: The police can certify my marriage certificate for court.

    Fact: If you can’t find the original, the copy should be certified by the Department of Home Affairs.

General information, not advice on your matter.

Documents

Tick items off as you gather them, or print the list to take with you.

About your marriage

About your children

About your finances

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Questions

What should I bring to a divorce consultation?

See the Documents tab. If you’re missing something, come anyway; we’ll tell you how to get it.

How long will my divorce take?

It depends mostly on whether your spouse opposes it, whether you can agree on a settlement, and the court’s roll. We’ll give you an honest estimate at your consultation instead of a number that sounds good.

We have children. What does a parenting plan involve?

A parenting plan sets out where the children live, contact with each parent, and how decisions about them are made. Courts prefer a plan endorsed by the Family Advocate, whose services are free. We draft it with you and take it through that process.

Can we get divorced without going to court?

No. Only a court can grant a divorce. If you agree on everything, though, the court process is much shorter.

What is the mediation notice?

Court rules now ask each side to say, in a notice, whether they agree to or oppose referring the dispute to mediation. We’ll explain whether mediation suits your situation.

Can I divorce my spouse if I don’t know where they are?

Often yes, but the court has to approve another way of serving the papers first. Bring whatever details you have.

Videos

More explainers on TikTok (opens in a new tab)

Videos are general explanations by Ms Makokomale, not advice on your matter.