CREDITS
By Desiré Pretorius
Divorce proceedings are often marked by fear, uncertainty and especially emotional strain. These factors combined go hand in hand with a well known question of whether or not you require your partner’s consent to get a divorce.
While it is a factor that South African Law places immense importance on maintaining a stable family relationship, our law also comes to our aid when we need it most.
The answer to this question is simply this:
No, you do not NEED your partner’s consent or signature to obtain a decree of divorce.
South African Law follows a dynamic approach to divorce in that parties can get divorced in two ways:
- Voluntarily by means of a settlement agreement.
- By a court of law following the exchange of pleadings.
Understanding a settlement agreement:
As mentioned, a settlement agreement is entered into voluntarily by two married parties.
This means that both parties agree to terminate the marriage and agree on the way in which they will part ways.
This is typically the more expedient and cost-effective way to divorce your partner and it allows for a harmonious end of your marriage.
A settlement agreement typically deals with aspects such as the division of assets, financial support either for a spouse or children, as well as care and contact regaring children.
Because this is a voluntary agreement, it does require the signature of both parties. Only then will the settlement be made an order of court.
However, even though a settlement is the ideal route to follow, either spouse may withdraw from this settlement agreement at any given time before it has been made an order of court.
The question now is, what are your options when your spouse refuses to sign a settlement agreement, or refuses to agree to a divorce?
In this scenario, the intervention of the court is needed to untie the matrimonial knot.
Understanding divorce by decision of the court:
You can approach an attorney experienced in Family Law to assist you in this type of divorce, which is known as an opposed divorce, and characterised by the exchange of documents known as pleadings.
This method starts by the Sheriff of the court serving a divorce summons personally on your spouse. This summons, similar to a settlement, sets out how you want your marriage to be terminated.
It deals with the division of assets, financial support if needed, as well as the care and contact of children born from the marriage.
After this first step, your spouse has a chance to answer to your summons. This means that your spouse can now set out in their document how they want the marriage to be terminated.
A court of law will then hear both sides and make a decision on how to terminate your marriage that is fair and just in the eyes of the law, as well as the in the interests of both parties.
This process is unfortunately characterised by a time-consuming, and costly journey. However, your marriage will be terminated whether your spouse consents or not, without requiring a signature to allow you to obtain a decree of divorce.
In conclusion, even though a divorce is a daunting process, it is certainly not unobtainable as our law does not and will not force a person to remain in a marriage they do not want to be in.
