Understanding what Happens in a Divorce under South African Law
Divorce is often a difficult experience, both emotionally and legally. In South Africa, the process is governed by the Divorce Act of 1979, and the specific procedures and outcomes depend largely on the marital regime of the spouses.
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Irretrievable breakdown of the marriage
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This is the most common basis for divorce. It applies when the relationship has deteriorated beyond repair, with no reasonable prospect of reconciliation. Situations such as prolonged separation, infidelity, or abuse may support this claim.
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Mental illness or continuous unconsciousness
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A divorce may be granted if one spouse has been institutionalised for an extended period or has remained unconscious for at least six months.
There are two main divorce processes:
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Contested Divorce
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This arises when spouses cannot agree on one or more issues. These cases often involve negotiations, mediation, and court proceedings, making them more time-consuming and expensive.
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Uncontested Divorce
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This occurs when both parties agree on all aspects of the divorce, including division of assets, child arrangements, and maintenance. It is generally quicker, more cost-effective, and can be finalised within a few months.
How assets are divided depends on the marital regime:
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Marriage in Community of Property
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All assets and liabilities are jointly owned and are typically divided equally upon divorce.
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Marriage Out of Community of Property (with accrual)
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Each spouse maintains separate estates, but any growth in value during the marriage is shared. The spouse whose estate has shown the smallest or no growth is entitled to half of the growth of the combined growth of both estates. In order to determine the growth of an estate, the value of the estate at dissolution is compared to the value at commencement of the marriage.
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Marriage Out of Community of Property (without accrual)
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Each spouse retains their own assets and debts. There is no sharing of assets unless agreed otherwise.
Children: Custody and Maintenance
When minor children are involved, their best interests are the court’s primary concern. The law generally provides for:
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Child maintenance
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Both parents must contribute financially, based on their income and the child’s needs.
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Primary residence
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The child typically lives with one parent, while the other is granted contact rights.
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Parental responsibilities and rights
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Both parents usually retain these rights unless the court determines otherwise.
Any settlement agreement must be submitted to the Family Advocate who will determine whether sufficient provision has been made for the needs of minor children, both financially and emotionally.
Spousal maintenance is not automatically granted. A spouse requesting support must demonstrate financial need. Courts consider several factors, including:
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Length of the marriage
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Age and health of each spouse
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Earning capacity
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Financial resources and obligations
The divorce process generally follows these steps:
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Issuing a summons
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The spouse initiating the divorce (plaintiff) files a summons in the High Court or Regional Court.
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Service of summons
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The other spouse (defendant) is formally notified of the action by the Sheriff of the Court. The defendant may then either agree to the divorce on the proposed terms or contest the divorce.
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Settlement agreement
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If both parties reach agreement, a written settlement is submitted to the court.
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Court proceedings
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If disputes remain, the matter proceeds to trial, where both parties present evidence.
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Final decree of divorce
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The court grants a divorce once satisfied that the marriage has irretrievably broken down and all related issues have been resolved.
Divorce in South Africa can range from straightforward to highly complex, depending on the level of agreement between spouses and the circumstances of the marriage. Uncontested divorces tend to be faster and less costly, while contested matters may involve prolonged litigation.
