How to get a divorce without a lawyer

Yes, you can get divorced without a lawyer, provided the divorce is unopposed. That means your spouse will not defend it, and you have agreed, or your spouse will not contest, the division of property, any maintenance, and the arrangements for any children. You use the court's own forms, you have the summons served by the sheriff, you wait out the time your spouse has to defend, and you then appear in person in the Regional Court or the High Court and give short sworn evidence. Where there are minor children, the Office of the Family Advocate must endorse the arrangements for them before the decree is granted. The Divorce Act 70 of 1979 sets the grounds and the court's powers, and the process is designed to be usable by ordinary people.

This guide is part of our Divorce in South Africa: the complete guide, which links every guide on the topic.

If your spouse defends the divorce, this guide is not for you. A contested divorce is litigation, and you should get Legal Aid or an attorney.

The grounds, in plain words

South Africa has no-fault divorce. The court grants a decree if the marriage has broken down irretrievably and there is no reasonable prospect of restoring it. Living apart, ongoing conflict, or simply the fact that one of you has moved on are all evidence of breakdown. You do not need to prove that your spouse did anything wrong, and your spouse cannot stop the divorce by refusing to agree that the marriage is over. What a spouse can contest is the money and the children.

How it works, step by step

Step one: choose the court. The Regional Court in the district where either of you lives, or the High Court in the division where either of you lives, can hear the divorce. The Regional Court is cheaper, closer and used to unrepresented parties. Most people doing this themselves use it.

Step two: get the forms. The clerk of the Regional Court has the divorce summons and particulars of claim in a standard format, and guidance on completing them. The particulars set out when and where you married, the marital property system, whether there are children, why the marriage has broken down, and what orders you ask for.

Step three: draft the settlement agreement. If you have agreed on property and maintenance, put it in a written settlement agreement signed by both of you. If there are minor children, include a parenting plan covering residence, contact, maintenance and decision-making. See what is a parenting plan.

Step four: the Family Advocate. Where there are minor children, complete the Family Advocate's forms, which ask for details of the children and the proposed arrangements. The Family Advocate considers them and, if satisfied, endorses them. If not satisfied, the Family Advocate may ask for more information or investigate.

Step five: issue the summons. Take the summons, particulars, settlement agreement and Family Advocate forms to the clerk. The clerk issues the summons with a case number.

Step six: service. The sheriff serves the summons on your spouse personally. You pay the sheriff's fee. You cannot serve it yourself, and a message on WhatsApp does not count.

Step seven: wait. Your spouse has a set number of court days after service to file a notice of intention to defend. If your spouse signs the settlement and does not defend, or simply does nothing, the divorce is unopposed.

Step eight: set it down. Apply to the clerk for a date on the unopposed divorce roll. Take the sheriff's return of service, the settlement agreement and the Family Advocate's endorsement.

Step nine: appear. On the day, you appear in person, take the oath, and answer short questions from the magistrate or judge. The court grants the decree and makes the settlement an order of court.

A worked example

Take a made-up couple. Nomvula and David married in community of property nine years ago and have two children, aged six and ten. They have agreed that the children live with Nomvula and see David on alternate weekends, that David pays a monthly amount towards the children, and that the house is sold and the proceeds shared equally. The figures below are illustrative only.

Nomvula draws up the settlement agreement and parenting plan using the clerk's template, and both sign. She completes the Family Advocate's forms and takes everything to the Regional Court, where the clerk issues the summons. The sheriff serves David at his flat. David signs a consent to the settlement and files nothing else.

Nomvula's out of pocket costs are the sheriff's fee and the cost of copies, which in her case come to a few hundred rand. Use the court fees calculator to see what those items might come to for you. It is illustrative only. Had she used a private attorney, even a simple uncontested divorce would have cost her many times that. See how much does a divorce cost in South Africa.

Three weeks after service, the defence period has run. Nomvula applies for a date. Six weeks later she appears, confirms under oath that the marriage has broken down, that the settlement is fair, and that the children's arrangements are as set out. The magistrate grants the decree and the settlement becomes an order of court.

Now change one fact. David decides he wants the children to live with him. He files a notice of intention to defend. The divorce is now contested, and Nomvula should stop and get help from Legal Aid or an attorney.

What to do this week

1. Confirm your marital property system. Find your marriage certificate and, if you signed an antenuptial contract, a copy of it. If you did not, read how does divorce work if you are married in community of property.
2. Sit down with your spouse, or communicate in writing, and agree the property, maintenance and children's arrangements. If you cannot agree, this is the moment to get advice.
3. Visit the Regional Court and ask the clerk for the divorce forms and the Family Advocate forms.
4. Draft the settlement agreement and parenting plan.
5. Work out a realistic maintenance figure using the maintenance estimator, remembering that it is illustrative.
6. Find your nearest sheriff's office and ask what service will cost.

Documents to gather

• your marriage certificate
• your antenuptial contract, if there is one
• the children's birth certificates
• your identity document and a copy of your spouse's
• your spouse's current address for service
• the signed settlement agreement and parenting plan
• proof of income for both spouses if maintenance is claimed
• the completed Family Advocate forms

A realistic timeline

In a quiet Regional Court, an unopposed divorce can be finalised within two to three months of issuing summons. In busy urban courts it can take four to six months, mostly waiting for a date on the roll. If the Family Advocate asks for more information or an investigation, add a few months. If your spouse is overseas, service takes longer; see how to get divorced when your spouse is overseas. See also how long does an uncontested divorce take.

Common mistakes and what they cost

Getting the property system wrong. If you plead that you are married out of community and you are not, the settlement may not reflect your true entitlement, and a pension fund may refuse to act on an order that does not fit.

A pension order that does not name the fund. The fund will not pay. You will need to go back to court to have the order corrected.

Leaving out spousal maintenance. If you want maintenance for yourself, claim it in the divorce. It is very difficult to claim it afterwards.

Serving your spouse yourself. The court will not accept it, and you will pay for a second service.

Signing a settlement under pressure. Once it is an order of court, it binds you. If you feel pushed, pause and get an hour of advice.

Forgetting the Family Advocate. Without the endorsement, the court will not grant the decree where there are minor children, and you lose your date.

What the court weighs

For the divorce itself, the court only needs to be satisfied that the marriage has broken down irretrievably. For the children, the court must be satisfied that the arrangements are in their best interests, which is where the Family Advocate's endorsement comes in. The Children's Act 38 of 2005 puts the best interests of the child first. In plain words, the court wants to see that the children have a stable home, a real relationship with both parents, and adequate maintenance, and that neither parent has been bullied into the plan. For property, the court checks that the settlement is lawful and fits your marital system. It will not renegotiate a fair deal for you, but it can ask questions if something looks wrong.

If you cannot afford an attorney

The whole point of this route is that you do not need one. The Regional Court clerk helps with the forms, the Office of the Family Advocate endorses the children's arrangements for free, and the Maintenance Court and Children's Court are free for any separate maintenance or contact dispute. Legal Aid South Africa on 0800 110 110 applies a means test and takes on divorces, including some contested ones, if you qualify. University law clinics in the larger centres run free divorce clinics and will often check your papers. For what private attorneys charge, see what family law costs.

If there is violence in the marriage, a protection order is a separate free process at the Magistrates' Court. The GBV Command Centre on 0800 428 428 can help you plan, and in an emergency call SAPS on 10111. You can ask the court for arrangements that keep you apart from your spouse on the day.

Frequently asked questions

People ask whether they both have to appear in court. Usually only the spouse who issued the summons, the plaintiff, appears in an unopposed divorce. The other spouse's signed settlement and consent are enough.

People ask whether they can divorce if they cannot find their spouse. Yes, but you first need the court's permission to serve in a different way, such as by publication, which is called substituted service. That is a separate application and Legal Aid or a law clinic can help.

People ask what happens if they have no assets and no children. Then the process is at its simplest: summons, service, waiting period, appearance.

Finally, people ask whether they can change the settlement after the decree. The property division is final except in rare cases. The children's arrangements and maintenance can be varied when circumstances change, through the Maintenance Court or the Children's Court.