This divorce settlement agreement is for use where the divorce is uncontested and where there is no pension interest to be split. It may be used where there is immovable property to be split and where there are minor children. It contains detailed drafting notes to assist with the conclusion thereof. It also contains a substantive disclosure clause and further information as to how a financially-dependent spouse may protect themselves.
From the outset, please note that it is extremely important that a qualified legal practitioner draws up the clause dealing with how pension fund interests are to be split. Google this issue and you will understand how many legal practitioners get this clause wrong, let alone lay-people, resulting in unenforceable claims. Use this agreement where the division of assets is relatively straightforward as we mention above. Where there are pension interests to be split and you will be proceeding with a DIY uncontested divorce, please email email@example.com for a substantive quote in drafting such settlement agreement for you and assisting you in the DIY process.
We reiterate that where the divorce is relatively straightforward and there is no claim to the pension interest, then use this agreement.
REMEMBER: If there are issues with how the pension interest clause is drafted and such is unenforceable against funds, then a court application (which is costly) will be required to be made to rectify such. Avoid this if possible and have a custom agreement drawn up to properly deal with the pension interest.
Again, purchase this agreement, where there is no pension interest to be divvied up.
You can go to certain Regional Magistrate’s Courts (and NOT the High Court as this will be more expensive as you may require an advocate and may take longer to be heard) and do your divorce for just the costs of the sheriff and the settlement agreement purchased here. We reiterate that this is solely for UNCONTESTED DIVORCES. Typically, you will be assisted with the following at the Divorce Courts:
- Divorce statistics Form as required by the Department of Statistics
- Form A (where minor children are involved)
- Combined Summons
- Particulars of claim
- Cover Sheet
- Notice of Set down
With enough preparation and research, this should not be a daunting exercise. In fact it can be cost-efficient and expeditious. Do your homework however and have a lot of patience as attending at court can be wearisome for lawyers even!
However, PLEASE NOTE, if there are pension interests to be divided up, such can get complicated in terms of calculations and following statute. Our settlement agreement has detailed drafting notes, but a cursory search on Google will show you that even legal practitioners get clauses in settlement agreements dealing with pension interests wrong, meaning that it becomes difficult to enforce such orders.
We strongly recommend that a bespoke (custom) agreement be drawn up by SITL Legal for you to enable us to do the necessary investigations on your behalf with the various funds and to ensure that such agreement is legally compliant IF THERE ARE PENSION INTERESTS TO BE SPLIT.
To be able to make use of the DIY divorce service at a Regional Magistrate’s Court, the divorce in question must be uncontested. This means that the divorcing parties must basically agree to the divorce and there must be no dissent around the divorce, the division of property, parenting and such like.
Previously divorces could ONLY be obtained in the High Court. Recent changes to SA law mean that one may now obtain an uncontested divorce in an applicable Regional Magistrate’s Court.
NOTE: You could apply for a divorce in a High Court if need be, however it should be quicker, faster and easier to do a DIY divorce in a Regional Magistrates Court than in the High Court.
Where the ex-wife-to-be is pregnant, or where the couple have minor children, then the involvement of the Family Advocate is required. The Family Advocate must always endorse the Settlement Agreement between the divorcing parties to ensure that parental arrangements regarding minor children are in the best interests of such minor child or minor children, as the case may be.
|We have a substantive divorce settlement agreement for sale here that encapsulates a detailed parental plan. There are explanatory and drafting notes within this agreement to guide you in terms of concluding it. This agreement deals with the following: division of marital assets (EXCLUDING PENSION INTERESTS), spousal maintenance, child maintenance, detailed parenting provisions regulating residence of the children, what is to happen in the event of the death of the primary care-taker, religious faith that children are to be brought up under, schooling, transport, mediation, breach, cists, good faith, full disclosure, etc. We reiterate the complexities with regard to dividing pension interests and advise that if the parties are divorcing on an uncontested basis, are doing a DIY divorce, but wish to have a customised (bespoke) settlement agreement and parenting plan drawn up due to complexities around, for example, pension interests, then please email info@sitllegal.,co.za for a quote.
How does one proceed with obtaining an uncontested do-it-yourself divorce at a Regional Magistrate’s Court?
- Make certain that the divorce is indeed uncontested and that there has been irretrievable break-down of the marriage (e.g. due to physical abuse, or adultery etc.), with no reasonable possibility of restoration of the marriage relationship.
- Do the ex-spouses-to-be agree to the divorce, the division of assets, how the children are to be parented, etc.? If so, the divorce is uncontested.
- Complete the Settlement Agreement and sign. If you wish to have the agreement reviewed to make absolutely certain that everything is correct and that the agreement is legally binding, then please email us here for a quote for such review. HOWEVER, we have included very robust provisions in the Settlement Agreement with detailed notes for conclusion thereof.
- If you would still like to go the DIY route, but are desirous (for whatever reason, e.g. very extensive assets that need to be dealt with, parental plan involving a spouse moving overseas) of SITL Legal drafting and concluding a custom (bespoke) Settlement Agreement and Parental Plan, and coaching and assisting through the entire process, then please email us here for a quote.
- Once the Settlement Agreement has been signed (sign a few copies as originals to prevent having to get them certified), find out which Regional Magistrate’s Court has jurisdiction to grant the divorce.
- Call the Regional Magistrate’s Court before going there. As this is a DIY divorce, you will have to attend personally. You will have to take your marriage certificate, ante-nuptial contract (if there was one concluded before the marriage) and certified copies of both parties’ identity documents. Make sure copies are clear and get them certified at a police station. You will need the originals for SAPS to be able to certify the copies.
- There are trained court officials there who will assist you with completing the divorce papers. If there minor children, or if the ex-wife-to-be is pregnant, you will be asked to complete Statutory Form A; this will be given to you at Court. You will also be asked to complete a Divorce Statistics Form, a combined summons and particulars of claim. You will receive a case number.
- In your particulars of claim that you fill in, please make sure that you ask for the Settlement Agreement to be made an order of court; this helps you if your ex-spouse-to-be defaults as he/she could be held in contempt of court for violating a court order. The Settlement Agreement incorporating the Parental Plan will be attached to the summons.
- Once the divorce papers are entirely completed, these must be taken to the relevant Sheriff to serve on the other party. To ensure that service happens, please attend at the Sheriff’s office with your ex-spouse-to-be. The papers will be served there and then on him/her and this will help keep costs down. The Sheriff will provide you with a return of service. NOTE: if your ex-spouse-to-be does not attend at the Sheriff with you and if the Sheriff has to make several attempts to serve the summons, this will result in increased costs. Manage this by calling the Sheriff beforehand and procuring that your ex-spouse-to-be attends with you so that service happens there and then. For a list of Sheriff’s in South Africa, please click here.
- If there are minor children, or if the ex-wife-to-be is pregnant, please call the Family Advocate that has jurisdiction over this matter. He/she will advise what the process is regarding them endorsing the Settlement Agreement. For a list of Family Advocates in South Africa, please click here. There is no cost for attending at the Family Advocate.
- Find out from the Regional Court handling your matter how long after the Family Advocate has endorsed the Settlement Agreement, must you go back to get a date for the divorce hearing.
- The Court will advise what you need to bring on the day of the hearing (original settlement agreement, original marriage certificate (get an original from Home Affairs if need be), ante-nuptial contract (if applicable).
- Dress smartly when you attend at Court. Do not be nervous. As the matter is uncontested, the defendant need not attend. (However, if possible, we recommend that the defendant does attend.)
- Enquire from the Court as to when you may pick up your divorce order.
After the divorce has been granted, you must submit your identity document and a certified copy of the divorce order to Home Affairs. This is required to evidence the change in marital status and to prove that you are now divorced.