Divorce in South Africa: 7 things to know before you file.

Deciding to end a marriage is difficult enough without the legal process feeling like a mystery. This is a plain-English overview of how divorce works in South Africa — what the law requires, what the court actually considers, and what you can do to prepare before you take the first step.

1. There is only one ground for divorce — and nobody has to be "at fault"

South Africa has a no-fault divorce system. Under the Divorce Act 70 of 1979, a court will grant a divorce where the marriage has broken down irretrievably — in other words, where there is no reasonable prospect of restoring a normal marriage relationship. You do not have to prove that your spouse did something wrong, and your spouse cannot ultimately prevent the divorce by refusing to cooperate. Evidence of the breakdown can be as simple as the fact that you have not lived together as a married couple for a period of time, or that the relationship has deteriorated to the point where continuing it is not realistic.

(Two narrower grounds — continuous unconsciousness and mental illness — also exist, but the overwhelming majority of divorces proceed on irretrievable breakdown.)

2. Contested and uncontested divorces are very different journeys

An uncontested divorce is one where both spouses agree on everything: the division of assets, arrangements for the children, and maintenance. The terms are recorded in a settlement agreement, which the court makes an order of court. An uncontested divorce can often be finalised in a matter of weeks to a few months, with one court appearance, and at a fraction of the cost of litigation.

A contested divorce is one where the spouses cannot agree on one or more issues. It follows the full litigation route — pleadings, discovery of documents, expert reports where needed, pre-trial procedures and ultimately a trial. Contested divorces can take considerably longer and cost considerably more.

Many divorces start contested and settle along the way. The practical lesson: every issue you can resolve by agreement saves time, money and conflict.

3. Your marital regime decides how assets are divided

Before the court looks at anything else, the starting point is how you were married:

• In community of property — the default if you married without an antenuptial contract. There is one joint estate, and on divorce it is generally divided equally, regardless of who earned or acquired what.
• Out of community of property with accrual — each spouse keeps their own estate, but the growth (accrual) in the two estates during the marriage is shared. The spouse whose estate grew less has a claim against the spouse whose estate grew more.
• Out of community of property without accrual — each spouse keeps what is theirs. There is no automatic sharing, although the court has a limited discretion in certain older marriages to order a redistribution of assets.

Your antenuptial contract (if you have one) is therefore one of the most important documents in the entire process. If you are unsure of your regime, this is one of the first things an attorney will establish.

4. Children come first — always

Where there are minor children, no divorce can be finalised until the court is satisfied that the arrangements for them are in their best interests. This covers where the children will primarily live, contact with the other parent, decision-making responsibilities and maintenance. The Office of the Family Advocate may be asked to investigate and report where parents cannot agree, or where the court wants an independent view. A well-considered parenting plan, drafted before you file, makes this part of the process far smoother.

5. Maintenance is dealt with on its own facts

There is no automatic right to spousal maintenance in South Africa. The court has a discretion, and considers factors such as the duration of the marriage, each spouse's earning capacity, age, standard of living and conduct where relevant. Child maintenance is different: both parents have a legal duty to maintain their children according to their respective means, and this duty exists regardless of the marital regime or who the children live with.

6. Which court, and interim relief while you wait

Divorces can be instituted in the High Court or in the Regional Civil Magistrates' Court with jurisdiction over the area where either spouse lives or works. The Regional Court route is often more cost-effective for straightforward matters.

If a contested divorce is going to take time, the law does not leave a spouse stranded in the interim. Rule 43 (in the High Court) and Rule 58 (in the Regional Court) allow a spouse to apply for interim maintenance, interim care and contact arrangements, and a contribution towards legal costs while the divorce is pending.

7. Preparation before you file makes everything easier

The matters that run smoothly are the ones that are prepared properly from the start. Before your first consultation, it helps to gather:

• your marriage certificate and antenuptial contract (if any);
• a summary of assets and liabilities — property, vehicles, pension and retirement funds, policies, debts;
• recent payslips or proof of income for both spouses, where available;
• a note of your children's ages, schooling and current care arrangements; and
• a short written chronology of the marriage and the events leading to the breakdown.

Pension interests deserve a special mention: a spouse's pension interest can form part of what is divided on divorce, but only if it is properly claimed and correctly described in the court order — a technical area where precise drafting matters.

A final word on process and costs

A divorce is a legal process with defined steps, and you are entitled to know at the outset what those steps are, what happens next, and what it will cost. A written mandate and clear fee arrangements before any work begins should be the standard, not the exception.

Disclaimer: This article is general information only and does not constitute legal advice for any specific matter. Every divorce turns on its own facts; consult an attorney about your particular circumstances.

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