Serving a divorce summons is important because if you have a registered marriage in South Africa, the only way to get a divorce, is if a court grants you a divorce and the way to get that court process started is via a divorce summons.
There is no other way if you have a registered marriage, only a court can grant you divorce and for the court to grant your divorce you must go through the divorce process, which starts with a divorce summons.
According to the Divorce Act 1979, a divorce summons must be served personally on the defendant by the Sheriff.
The divorce summons has two aspects. The first part of the divorce summons contains the information that the sheriff will use to serve the summons on your spouse or your ex-spouse. Generally, it’s about two or three pages, there’s nothing complicated about it.
It contains:
- case number
- names of the parties
- the address for service etc
Particulars of Claim
The second part of the divorce summons is called the Particulars of Claim. This section is very important as it contains all the information that is necessary to get your divorce.
It contains:
- The particulars of claim will be the first part with your details: your name, your I.D. number, your address and what is your occupation.
- The second paragraph of your particulars of claim will be your ex-spouse details: their name, their I.D number, their address and their occupation.
- The third paragraph of the particulars of claim is something called Jurisdiction. This basically means that the parties live in the area where the court is located, if you stay in Durban you’re going to go to the Durban court.
- The fourth paragraph is details about the marriage: Where was the marriage? What date was the marriage? What marital regime is the marriage in for example in community of property or out of community or property?
- The next paragraph deals with children. How many minor children are born in the marriage, their names, their date of birth, how old they are, and whether they’re male or female.
- The next paragraph deals with the details of the breakdown of the marriage. What caused the breakdown of the marriage, loss of communication, infidelity, and no longer living together as husband and wife, these are common examples of what parties use as the reason for the breakdown in the marriage.
- The next aspect deals with the pension fund, you’re only going to select this aspect generally if you’re married in community property. If you’re married in community of property then your husband or your wife is entitled to 50% of your pension fund and you are also entitled to 50% of their pension fund. If you’re not married in community or property then you can just say the parties agree to have their own pension interest and that each party will keep their own assets and liabilities.
- The next aspect is about the care and guardianship of the children, where will be the primary residence of the children, how often will they be in telephonic contact with the other spouse, what happens on school holidays, what happens on weekends birthdays etc. That information then goes into that paragraph regarding care and contact of the children.
- The last aspect deals with maintenance, who’s going to pay for the children, who’s going to pay for your maintenance, medical aid, school fees.
Once you’ve completed the information, you attach the necessary I.D documents, proof of residence, children’s birth certificates, children’s reports, aspects like that and then you get the sheriff to serve that document but you must get a case number first, from the court that you’re going to.
You go to court with the summons and Particulars of Claim and they’ll give you a case number. Once you get the case number, you get the sheriff to serve that document on your spouse.
The best way to locate the sheriff is to Google sheriff near me, phone them and ask if they cover that address where your spouse is located.
