Divorce in South Africa explained: what couples need to know

In South Africa, divorce is the only legal way to end a marriage, whether civil, customary or a civil union.
The country follows a no-fault system.

“One of the biggest misconceptions we see is that people think they have to prove adultery or bad behavior in order to get a divorce,” says Ann-Suhet Marks, director and head of litigation at VDM Incorporated.

“The court only looks at whether the marriage is beyond repair,” says Marks.
According to recent data, the divorce rate has reached its highest level in 10 years.

Marks warns that many couples, especially those with children, need better access to clear legal guidance.

There are three ways to get a divorce:

• Uncontested divorce
The fastest and most affordable option where both parties agree on finances, property and children.
An impartial lawyer is appointed to draft the settlement agreement.
Once both parties sign the agreement and it is made a court order, the divorce can usually be finalized within a few weeks.

• Mediation
A mediation option where a mediator helps resolve disputes when spouses are struggling to reach an agreement but want to avoid the lengthy court process.
Once a settlement is reached, lawyers prepare a final settlement agreement, which is presented to the court.
Mediated divorce usually takes about three months

• Opposed divorce
When couples cannot agree, the case goes to court and the judge will ultimately decide the terms of the divorce.
It is expensive, lengthy, and emotionally draining, especially for the children if the spouses have any children.

Marx urges, “Because of the cost and emotional burden, contested divorce should be a last resort.”

Key Legal Facts:

“Segregation” has no legal status in South Africa; Are you married or divorced?

Living separately does not end the marriage.

A separation agreement can regulate arrangements, but does not end the marriage.

Couples may enter into a separation agreement, which sets out financial, property and parenting arrangements while living apart.

Although legally binding, a separation agreement does not end the marriage.

Grounds for divorce include:

• Irretrievable breakdown of marriage
When the relationship has broken down to such an extent that there is no reasonable possibility of reconciliation.

• Living separately for at least a year
When spouses live apart for a long time, and there is no possibility of restoring the relationship, the court may find that the marriage has completely broken down.

• adultery
Adultery in itself is not a legal ground for divorce.
However, it can be used as evidence that the marriage has broken down if the affected spouse feels that reconciliation is no longer possible.

• Criminal conviction or imprisonment.
Where one spouse has been convicted of multiple crimes or is serving a prison sentence, the court may find that the marriage cannot continue.

• Mental illness or persistent unconsciousness
When the defendant has been institutionally detained, detained as a mentally ill prisoner or has been unconscious for more than six months, supported by the medical evidence of two psychiatrists and evidence that recovery is not likely, a divorce may be filed.

Divorce often involves legal, financial, and emotional disputes.

The complexity of these issues depends on the circumstances of the marriage and whether the divorce is uncontested, mediated or contested.

Common causes of disputes:

• Division of property and assets
The marital regime (marriage in community of property, out of community of property, with accumulation or without accumulation) determines how property will be distributed.

• Maintenance of spouse
If either spouse was financially dependent during the marriage, they can claim maintenance.

• Arrangements for child custody and care
Issues such as where children will live, contact arrangements, and decision-making around education and health care

• Child support payments and protection orders.
Where there is a history of abuse, harassment or violence, a protection order may be sought. The courts take these cases very seriously, especially where children are involved.

• Pension and retirement benefits
Marks concluded, “Divorce remains a complex process with long-term emotional and financial implications, making proper legal advice essential.”

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