This article answers common FAQ divorce questions raised by people considering divorce in South Africa. It explains the basic legal position, the divorce court process in South Africa, and the issues that usually require careful legal advice.
Divorce proceedings in South Africa are primarily governed by the Divorce Act 70 of 1979. Where minor children are involved, the Children’s Act 38 of 2005 is also central in relation to parental responsibilities and rights, including care, contact, guardianship, maintenance. These are all determined with the paramount consideration being the best interests of the child.
Here are some divorce lawyer FAQs, which have arisen frequently in our practice.
1. How long does a divorce take in South Africa?
The duration of a divorce depends mainly on whether the matter is opposed or unopposed.
An uncontested divorce, where the parties have reached agreement on all material issues, can often be finalised within approximately two to six months, depending on the court roll and administrative requirements.
A contested divorce may take substantially longer, particularly where there are disputes regarding:
- The exercise of parental responsibilities and rights, such as care and contact arrangements in respect of minor children
- Child maintenance or spousal maintenance
- The proprietary consequences of the marriage, including aspects concerning pension interests.
- Forfeiture of patrimonial benefits
- Redistribution claims
Early legal advice can assist in identifying the real issues in dispute and determining whether settlement is possible.
2. What rights do I have during a divorce?
Your rights during divorce depend on the facts of the matter and the legal consequences of your marriage.
The most important considerations usually include:
- Your marital property regime, such as
- Whether you are married in community of property
- Whether you signed an antenuptial contract
- Whether the accrual system applies
- The financial position of each party
- The best interests of any minor children involved
- The conduct of the parties
A divorce attorney will usually begin by determining the marital property regime and then advising on the consequences for assets, liabilities, maintenance, and any children born of the marriage.
3. What happens to the children during divorce?
Where minor children are involved, the court must be satisfied that their interests are properly protected before granting a decree of divorce.
Section 28(2) of the Constitution and section 9 of the Children’s Act confirm that a child’s best interests are of paramount importance in every matter concerning the child.
In divorce proceedings, the parties must agree, or the court must hear evidence and make an order on parental responsibilities and rights, such as:
- Care and Contact, including
- Primary Residence
- Holiday arrangements
- Visitation and telephonic contact
- Special days
- Guardianship, including
- Child maintenance, including
- Medical aid and healthcare expenses
- Schooling and educational decisions
The Children’s Act does not assume that one parent should automatically be excluded from the child’s life. The focus is on arrangements that serve the child’s best interests in the particular circumstances.
You can read more about child-related matters on our Children’s Matters page.
4. Will I lose my house or assets in the divorce?
The division of assets depends primarily on the parties’ marital property regime, and their debts.
If the parties are married in community of property, the joint estate is generally divided between them, subject to any relevant claims by creditors or court orders to the contrary.
If the parties are married out of community of property with the accrual system, the accrual calculation must be performed to determine whether one party has a claim against the other. The accrual claim is a claim for a payment in cash, and not for a transfer of assets.
If the parties are married out of community of property without accrual, each party generally retains his or her own estate, subject to any applicable asset transfer claims, agreements, or court orders.
Assets and liabilities that may be relevant to the divorce include:
- The family home
- Vehicles
- Bank accounts
- Investments
- Business interests / shares
- Pension interests
- Loan accounts
- Bond debt and other liabilities
In terms of the Divorce Act, the court may deal with issues such as maintenance, redistribution in limited circumstances, forfeiture of patrimonial benefits, and pension interests.
5. Can pension interests be divided during divorce?
Yes. Pension interests may form part of the proprietary consequences of divorce.
In terms of the Divorce Act, a court may make an order regarding a member spouse’s pension interest where the legal requirements are met. This may apply even though the pension has not yet paid out.
The wording of the divorce order is important. If the pension clause is not properly drafted, the relevant pension fund may refuse to give effect to the order.
6. How much does a divorce cost?
The cost of a divorce depends on the complexity of the matter, whether it is opposed, and the extent of the work required.
An uncontested divorce is usually more cost-effective because the parties have already agreed on the material terms. A contested divorce is usually more expensive because it may involve the exchange of pleadings, discovery, financial disclosure, interim applications, expert reports, settlement negotiations, and trial preparation.
Legal costs are usually affected by disputes relating to children, maintenance, property, pensions, businesses, trusts, or allegations of financial non-disclosure.
7. Do I have to fight in court for a divorce?
No. Many divorce matters are resolved by agreement.
Settlement may be reached through attorney correspondence, round-table discussions, mediation, or formal settlement negotiations. Where appropriate, mediation may assist parties in resolving disputes without prolonged litigation.
However, litigation may be necessary where one party refuses to disclose financial information, acts unreasonably, places children at risk, refuses to negotiate in good faith, or where urgent interim relief is required.
8. Can my spouse refuse to agree to the divorce?
A spouse cannot prevent a divorce merely by refusing to agree to it.
In terms of the Divorce Act 70 of 1979, a court may grant a decree of divorce if it is satisfied that the marriage relationship has irretrievably broken down.
Irretrievable breakdown may be shown where there is no reasonable prospect of restoring a normal marriage relationship. One of the ways of showing this is if the parties have been living apart for more than a year. This is, however, not a requirement for divorce in South Africa.
If one spouse refuses to participate, the matter may still proceed in accordance with the Divorce Act in terms of the court rules.
9. Will I receive or pay maintenance?
Maintenance must be considered separately for children and spouses.
Both parents have a legal duty to maintain their children according to their respective means. Child maintenance is determined with reference to the child’s reasonable needs and each parent’s financial position.
Spousal maintenance is not automatic. A court considers the facts of the case, including:
- The existing or prospective means of each party
- Their respective earning capacities
- Their financial needs and obligations
- The duration of the marriage
- The standard of living before divorce
- The parties’ ages
- Conduct, where legally relevant
- Any other factor the court considers appropriate
Maintenance disputes often require proper financial disclosure, including income, expenses, assets, liabilities, and supporting documents.
10. What documents should I prepare before consulting a divorce lawyer?
Proper preparation assists the attorney in assessing the matter accurately from the outset.
Useful documents may include:
- Marriage certificate
- Antenuptial contract, if applicable
- Identity documents
- Children’s birth certificates
- Payslips or proof of income
- Bank statements
- Bond statements
- Vehicle finance statements
- Pension or provident fund statements
- Proof of monthly expenses
- Documents relating to businesses, trusts, or investments
- Details of debts and liabilities
In contested divorce proceedings, formal financial disclosure may become necessary.
Understanding the Divorce Court Process in South Africa
The divorce court process South Africa follows depends largely on whether the matter is opposed or unopposed. It usually involves some of the following steps:
- Taking instructions and assessing the legal issues
- Preparing a summons and particulars of claim
- Issuing the summons at court
- Serving the summons on the defendant by the sheriff
- Receiving a notice of intention to defend, if the matter is opposed
- Exchanging pleadings where necessary
- Dealing with discovery and financial disclosure
- Attempting settlement where appropriate
- Preparing for trial if the matter remains unresolved
- Obtaining a decree of divorce and any ancillary orders
Where the matter is settled, the parties may conclude a settlement agreement and parenting plan, where applicable. These documents may then be made an order of court when the divorce is finalised.
What should you do before making major decisions?
Parties should obtain legal advice before signing agreements, disposing of assets, moving out of the common home, relocating with minor children, changing schooling arrangements, or making financial undertakings during the divorce process.
Decisions made early in the process can have important consequences for parenting arrangements, maintenance, property claims, and litigation strategy.
Obtaining Legal Advice Early
Early legal advice assists parties in understanding their rights and obligations before important decisions are made regarding children, finances, maintenance, or property.
Many divorce questions in South Africa involve children, maintenance, pension interests, and the proprietary consequences of marriage.
Vermeulen Attorneys advises clients on opposed and unopposed divorce proceedings, parenting disputes, maintenance claims, pension interests, and the proprietary consequences of divorce.
Contact Vermeulen Attorneys if you require advice regarding divorce proceedings in South Africa, or for assistance with other common divorce questions
Some More FAQ Divorce Questions in South Africa
Can I get divorced without my spouse agreeing?
Yes. A court may grant a decree of divorce if the marriage has irretrievably broken down, even if one spouse does not agree to the divorce.
What is the difference between contested and uncontested divorce?
An uncontested divorce occurs where the parties agree on all material issues. A contested divorce involves unresolved disputes, usually relating to children, maintenance, property, pensions, or finances.
What law applies to children during divorce?
The Children’s Act 38 of 2005 applies to issues involving parental responsibilities and rights, care, contact, guardianship, and the best interests of the child.
Can pension funds be divided during divorce?
Yes. A pension interest may be dealt with in a divorce order where the legal requirements are met and the order is properly drafted.
Can I claim spousal maintenance after divorce?
Yes, you can. However, spousal maintenance is not automatic. The court considers the factors listed in the Divorce Act, including need, means, earning capacity, duration of the marriage, and standard of living.
Do I need a parenting plan?
A parenting plan is often advisable where minor children are involved, particularly where the parties need to regulate care, contact, holidays, schooling, communication, and decision-making.
Should I consult a divorce lawyer before leaving the family home?
Yes. It is advisable to obtain legal advice before leaving the common home, particularly where there are minor children, property disputes, or maintenance issues.
Do I Need a Divorce Lawyer in South Africa?
Although parties may represent themselves in divorce proceedings, legal advice is often important where there are disputes regarding children, maintenance, pension interests, accrual claims, or the proprietary consequences of the marriage.
A divorce lawyer can assist with drafting settlement agreements, parenting plans, court documents, and advising on the legal consequences of proposed settlements.
