“I just want to be free, Sir,” Yolandie said, her voice thick with exhaustion. “He says he won’t sign. He says he still loves me, then he threatens to make my life a misery if I leave. I just… I don’t know what to do.”
Yolandie’s situation is heartbreakingly common. You’ve made the difficult decision to end your marriage, but your spouse refuses to cooperate. They might be in denial, trying to control the situation, or simply hoping you’ll give up. It feels like you’re stuck in a legal purgatory, but here’s the good news: in South Africa, your spouse cannot hold you hostage in a marriage you no longer wish to be in.
The Myth of the Unsignable Divorce:
The biggest myth out there is that if one spouse refuses to sign the divorce papers, the divorce can’t proceed. This is absolutely FALSE. While an uncontested divorce (where both parties agree on everything) is quicker and cheaper, a contested divorce can and will proceed even if one party is digging in their heels like a stubborn donkey.
Why a Spouse Might Refuse to Sign (It’s Rarely About the Pen):
Denial or Hope: They genuinely believe the marriage can be saved or that you’ll change your mind.
Emotional Manipulation/Control: They want to punish you or maintain control over you.
Fear of the Unknown: They’re scared of the financial implications, being alone, or losing access to children.
Lack of Information: They might not understand the process or their rights.
Strategic Delay: They might be trying to prolong the process for their own benefit, hoping you’ll buckle under the pressure.
How to Untie the Knot When Your Spouse is a Knot:
In South Africa, you don’t need “fault” (like adultery or abuse) to get a divorce. The most common ground for divorce is that the marriage has irretrievably broken down. This means there’s no reasonable prospect of restoring a normal marriage relationship. This is crucial – you don’t need their agreement on why the marriage is over, just that it is.
Start the Process Anyway:
Draw up the Summons (the official court document initiating the divorce) and issue it out of the High Court, or Regional Court. This Summons will then be served on your spouse by the Sheriff of the Court. This is the official notification that divorce proceedings have begun. Your spouse cannot ignore this.
Default Judgment (When They Go Silent):
If, after receiving the Summons, your spouse still does nothing – they don’t file a Notice of Intention to Defend, and don’t respond to anything – you can apply for a default judgment. The court can then grant the divorce without your spouse being present. It’s a bit like giving them enough rope to hang their own non-cooperation.
Contested Divorce (When They Fight Back):
If your spouse does respond and indicates an intention to defend the divorce (which they can do even if they don’t have valid grounds for refusing the divorce itself), the divorce becomes contested. This means there will be a court process where both sides present their arguments and evidence regarding issues like children, assets, and maintenance.
The court will ultimately make a decision, even if your spouse never “agrees” to it. Their refusal to sign doesn’t stop the judge from granting the divorce order.
Yolandie’s Path to Freedom:
Yolandie, with a deep breath and a steely resolve, decided to proceed. The Summons was drafted, and the Sheriff served it. Her husband, true to form, initially ignored it. We then took steps towards a default judgment. This finally got his attention, and he appointed a lawyer. The matter became a contested divorce, but not because he could stop the divorce itself. Rather, he contested the terms related to their assets and the 50% claim against his pension fund. While it meant a longer process for Yolandie, the crucial point was that the divorce was progressing. The negotiations were started, with the threat of court looming, and eventually, a settlement was reached. Yolandie got her freedom, and 50% of his pension fund, and her husband, despite his initial resistance, had to accept the legal reality.
Takeaway: You deserve to move on with your life. While a difficult spouse can make the divorce process more emotionally and financially draining, they cannot legally prevent the divorce itself from happening. Know your rights! Although in many cases you don’t need a lawyer, we advise that you speak to an experienced lawyer, and remember: the law provides a path to freedom, even if your spouse prefers to linger in legal limbo.
