Divorce Process in South Africa, Step by Step

Divorce in South Africa is governed by the Divorce Act 70 of 1979. Only a court — the High Court or a Regional Division of the Magistrates’ Court — can grant a divorce. Understanding the process helps you know what to expect and how to protect your interests.

Grounds for divorce

South Africa has a “no-fault” divorce system. The main ground is the irretrievable breakdown of the marriage — meaning there is no reasonable prospect of restoring a normal marriage relationship. A court may also grant divorce on the grounds of mental illness or continuous unconsciousness of a spouse, subject to strict requirements.

The importance of the marital regime

How your assets are divided depends heavily on your matrimonial property regime: in community of property (assets and debts are shared in a joint estate), out of community with the accrual system (growth during the marriage is shared), or out of community without accrual (each keeps their own estate). This is usually determined by your antenuptial contract, or the default if you did not sign one.

Uncontested (unopposed) divorce

If both spouses agree on all issues — division of assets, maintenance, and arrangements for children — the divorce is uncontested. The parties sign a settlement agreement, which the court makes an order of court. An uncontested divorce can often be finalised in a matter of weeks and only one party usually needs to appear briefly in court.

Contested (opposed) divorce

If the spouses cannot agree, the divorce is contested. It follows the normal litigation process: summons, plea, discovery of documents, and eventually a trial. Contested divorces can take many months or even years and are considerably more expensive. Many contested divorces still settle before trial, often with the help of mediation.

Children’s interests come first

Where children are involved, their best interests are the paramount consideration, as required by the Children’s Act 38 of 2005 and the Constitution. The court will not grant the divorce until it is satisfied that proper arrangements have been made for the care, contact and maintenance of the children. The Office of the Family Advocate may investigate and make recommendations.

Maintenance and asset division

• Spousal maintenance may be ordered depending on factors such as each spouse’s means, age, earning capacity and the duration of the marriage.
• Child maintenance is dealt with according to the needs of the child and the parents’ respective means.
• The joint estate or accrual is divided according to the applicable marital regime.

Getting help

While a simple uncontested divorce can sometimes be done without an attorney, legal advice is strongly recommended where there are assets, a business, or children involved. An attorney can ensure the settlement agreement properly protects your rights and those of your children.