In the past, divorces could not be granted without both parties agreeing to same, however, the current position in South Africa is that a divorce may be granted even in instances where the other party does not provide his/her co-operation.
When it comes to divorce proceedings, the other party’s consent to a divorce is not necessary in order for a divorce to be granted by the Court. In simple terms, a divorce will be granted against you whether you like it or not, as long as the other party can convince the Court that the marriage cannot be restored to a normal peaceful marriage as a result of same being irretrievably broken down.
A divorce process is firstly being instituted by way of a Summons being issued at Court and same being sent to the Sheriff of the Court for service upon the Defendant. The Sheriff will thereafter serve the Summons upon the Defendant personally. It needs to be emphasized that personal service is a necessity herein since a divorce involves a person’s status.
The Defendant only has 10 (ten) days to serve and file his/her Notice to Defend the divorce, failure to do so will lead to the Plaintiff seeking a court date in order for the divorce to be granted by default on an unopposed basis since the Defendant has not shown interest of opposing / defending the divorce.
However, should it be the case that the Sheriff went to the Defendant in order so serve the Summons and the Defendant states that he/she will not accept the Summons or he/she does not want to divorce the Plaintiff or sign for same, the Sheriff shall draft his/her “Return of Service” document to the Plaintiff’s attorney and same shall suffice as personal service.
In light of the above, a decree of divorce may be granted as per the Plaintiff’s wish despite the Defendant agreeing to same or not.
However, problems might arise when the divorce proceedings are at a settlement stage and the other party does not co-operate in respect of signing the Deed of Settlement, this might prolong the process and the matter will eventually be finalized by way of going on trial in that regard.
Be that as it may, a divorce will be granted in the end.