The Legal Fundamentals of Divorce in South Africa | Legal Articles


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The Legal Fundamentals of Divorce in South Africa

The dissolution of marriage is one of the biggest decisions one can make in their lives. Due to the sometimes-grave consequences, divorce is one that the Courts do not take lightly and will only order upon evidence that a normal marriage relationship cannot be restored.

divorce attorneys in Cape Town

Divorce Act South Africa – Grounds for Divorce in South Africa

Section 3 of the Divorce Act 70 of 1979 provides grounds upon which the Courts may consider before granting a decree of divorce, being irretrievable breakdown of marriage, mental illness and/or continuous unconsciousness of a party to the marriage.

The reasons which cause irretrievable breakdown of marriage are various from infidelity, various forms of abuse, separation for at least a year prior to institution of divorce proceedings, declaration as a habitual criminal and imprisonment, to loss of love and affection.

There can never be a closed bracket of these reasons and the Courts stand to hear evidence aimed at proving the factors attributable to the irretrievable breakdown of the marriage.

Hereunder the main issues that are normally up for resolution at divorce proceedings are briefly discussed.

Divorce Process in South Africa

Firstly the dissolution of the marriage by the Court upon satisfaction that one of the grounds in Section 3 of the Divorce Act as explained above has been proven. A lot of difficulties and delays should be anticipated during the divorce process mainly due to the fact that most of the parties will be under a lot of emotional stress, shock, disappointment, frustration and uncertainty.

Further, there are other interests which will be at stake such as the welfare of the children, division of the estate as well as the settlement of creditor claims. All these may result in the aggrieved party resorting to taking measures to frustrate the other party, delay or hasten the process for their own individual benefit.

Secondly and upon plea by either party, the Court will decide on spousal maintenance after divorce. Unlike child maintenance, spousal maintenance is not a given and will require such party to prove before the Court why they deserve to be maintained by the other party after divorce. The considerations which help the Court to decide on this are provided for in Section 7(2) of the Divorce Act.

Considerations such as age, the parties’ contribution to the breakdown of the marriage, the spouses’ existing or prospective means, earning capacities, duration of the marriage, financial needs and obligations, standard of living during the marriage and any other consideration which the Court deem necessary.

Thirdly, the issue of child custody and child maintenance will be central to the proceedings as well. However, if the court is of the view that these issues are unnecessarily taking a toll or delay on the divorce process, it may refer those matters to the Children’s Court and the Maintenance Court respectively to be decided separately without delaying or frustrating the divorce process.

Fourth will be the issue of matrimonial property. This is largely dependent on the matrimonial property regime that exists between the spouses i.e in community of property or out of community of property. In most cases where community of property applies, disputes still occur with regards to the actual liquidation and division, and the Court may have to appoint a Liquidator to assist in the liquidation and division of the joint estate.

Finally, with regards to more technical issues, one needs to approach the Court with jurisdiction in the place of ordinary residence, in which one has ordinarily resided at least 12 months prior to the initiation of the divorce process. One can also initiate the divorce proceedings with jurisdiction in the place where the Defendant ordinarily resides. In the event that Plaintiff does not know where the Defendant stays, maybe they have been separate for years, Plaintiff may request for substituted service from the Court, or edictal citation for service outside the Republic of South Africa if the Defendant resides there.

Van Deventer & Van Deventer Incorporated – Divorce Attorneys South Africa

How then can a person ensure that should they decide to divorce, the process will be less strenuous? It is advisable that parties seek legal assistance before embarking on the divorce process.

This will ensure that proper legal guidance will put them in a position to opt for the better avenues in navigating the process. The attorneys of the parties often will opt for the facilitation and conclusion of a settlement agreement between the spouses.

Settlement agreements are of immense advantage in that they make the process hassle free, less costly, and less combative. This process is aimed at ironing out the issues in dispute before approaching the Court. These issues relate to those discussed above mainly i.e maintenance, division of matrimonial property, custody of the children etc.

Upon the conclusion of the settlement agreement and it being reduced to writing, the Court can then be approached on uncontested basis or at worst with lesser issues in dispute, which is a situation very much favourable to both parties.  

Contact our divorce attorneys in Cape Town and Johannesburg for more information


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