South Africa has a ‘no fault’ system of divorce. This means that you can get divorced if your marriage has irretrievably broken down without apportioning blame to the other party. As divorce laws in South Africa are different to other countries, this guide tells you what you need to know about divorce in South Africa, including what happens to your property and children.
Divorce laws in South Africa
South Africa uses a ‘no fault’ system of divorce. There are two recognised grounds for divorce in South Africa:
- Irretrievable breakdown of the marriage (which is the most common)
- Mental illness or unconsciousness.
Irretrievable breakdown of your marriage
The court may grant your divorce on the grounds of irretrievable breakdown if it is satisfied that there is no reasonable prospect of restoring your marriage.
The Divorce Act 70 (1979) outlines the grounds that the court may accept as evidence of the irretrievable breakdown of a marriage:
- You have not lived together as a married couple for at least a year before petitioning for divorce
- One party is a criminal and is imprisoned.
Note that the court may not grant your divorce if it believes that there is a reasonable possibility that you may reconcile through counselling.
Mental illness or unconsciousness
The court may also grant your divorce on the grounds of the mental illness of one party. They must be satisfied that:
- One party has been admitted as a patient to an institution
- One party is being detained as a state patient at an institution
- One party is being detained as a mentally ill convicted prisoner at an institution.
The court may also grant a divorce if one party is confirmed as mentally ill by two psychiatrists (for at least two years) and that there is no reasonable prospect of them being cured.
In addition, the court may grant your divorce on the grounds that other party has, by reason of a physical disorder, been in a state of continuous unconsciousness for more than 6 months and that there is no prospect of them regaining consciousness.
An uncontested divorce is the quickest and simplest way to divorce, and this can involve both of you working with the same lawyer to agree agreements which can then be provided to the court.
If you can’t agree on divorce terms, or one of you decides to dispute the reason for the divorce, you will have to go through the court process for a contested divorce. This process involves several steps including pleadings, document discovery and a trial hearing. It can take a long time to conclude.
Child custody arrangements in South Africa
In order to grant a divorce, a court in South Africa will have to be satisfied that arrangements for your children have been agreed.
The Children’s Act (2005) governs all arrangements relating to your child, apart from maintenance.
As in other countries, the court’s primary concern is the best interests of your child. Your child has the right to contact with both parents, and a court will consider the following factors when making an award:
- Your child’s relationship with each parent
- Your attitudes towards caring for your child
- Your ability to meet your child’s needs
- The effect on your child of any change in their circumstances
- How easy or hard it is for your child to have contact with both parents
- Your child’s age, maturity and background
- Your child’s physical and emotional needs
- Any risk of harm or neglect
The law in South Africa also expressly includes the right of your child to participate in any decisions relating to them.
If you want to take your child out of South Africa – even for a holiday – then the consent of both parents is required. If your child is removed from South Africa without your consent, then this may constitute ‘child abduction’.
South Africa is a signatory to the Hague Convention on Child Abduction. This means that if your child is taken to another Hague Convention country without your consent, you can seek an order for your child’s immediate return to South Africa.
Financial settlements on divorce in South Africa
If you are divorcing in South Africa, you must have agreed a financial settlement before the court will grant your divorce.
If you married in ‘community of property’ then, when you divorce, your joint assets will normally be divided equally between you. You can draft a financial settlement in order for this to be incorporated within the divorce and made an order of the court.
Alternatively, the court can appoint a receiver to realise your assets and to divide them between you.
If the other party is acting in a negligent manner (for example by recklessly spending) then you can apply to the court to suspend their capacity over the joint estate. If this is granted, then you can control your assets without the other party’s consent.
It is possible to marry outside ‘community of property’. For example, you may have entered into a valid ANC before you were married, or you may have changed your marital arrangements through the courts to ‘out of community of property’.
In this situation, you maintain separate assets even when married. Any assets and liabilities acquired before and during your marriage form part of your separate estate, meaning it protects you from claims against your assets by your spouse.
The information on this website is to be considered a guide and is therefore not legal advice. You use this information with the understanding that Wiselaw does not accept liability for any direct or indirect losses as a result of anyone relying on or acting upon the information on this website. Whilst we endeavour to provide accurate information, Wiselaw does not accept liability for any errors or omissions on this website.