What Can I Do If My Spouse and I Cannot Resolve Certain Disputes?

Spouses in South Africa who cannot agree on key issues — parenting arrangements, the division of assets, maintenance, or the marriage itself — have several formal pathways: direct negotiation, accredited family law mediation (compulsory before certain contested divorces involving minor children under the Mediation in Certain Divorce Matters Act 26 of 1987), collaborative law in a four-way meeting model, and contested divorce litigation through the Regional or High Court as a last resort. The best-fit option depends on whether children are involved, the level of hostility between the parties, whether both spouses will engage with the same process, and whether the underlying dispute is about the ongoing marriage or about ending it.

What Kind of “Spouse Dispute” This Article Is About

This article covers disputes between spouses — married, whether in community of property, out of community of property, or with accrual — where the parties themselves cannot agree. The most common categories in practice are parenting plans and care or contact disputes, the division of assets and accrual, spousal and child maintenance, the question of whether to divorce at all, and disputes that arise during an existing divorce.

The dispute between spouses should be distinguished from one spouse’s conduct against the other (assault, intimidation, harassment) — that route runs through the Domestic Violence Act 116 of 1998 and criminal procedure, and is covered separately below. Not every marital disagreement needs a lawyer; the focus here is on disputes that the spouses themselves have already tried and failed to resolve.

The Range of Options at a Glance

South African family law offers four principal pathways for spouses in dispute. The right one depends on the level of conflict, whether children are involved, whether both parties will engage, and how urgent interim relief is.

Pathway	Best suited to	Cost / pace	Outcome if it works
Direct negotiation	Low-conflict disputes, no children, both parties willing to talk	Lowest cost, fast	A signed settlement the parties draft themselves
Accredited family mediation	Most disputes, and required in form before certain contested divorces with minor children	Moderate, faster than court	A settlement agreement filed with the court
Collaborative law (four-way meeting)	Spouses willing to commit to settlement-only process; both have lawyers, often with children	Moderate to high, slower than mediation, faster than court	A signed settlement agreement
Contested divorce (litigation)	Disputes that cannot be resolved through any of the above	Highest cost, slowest	A court order (settlement or judicial ruling)

Option 1: Try Direct Conversation First

It is worth attempting a direct conversation before any professional process — many disputes settle once the parties sit down with full information in front of them. A useful starting toolkit is to list the disputed issues on paper, identify the actual disagreement under each (often narrower than it first appears), and attempt a written heads-of-terms even if no lawyer is involved.

Direct conversation usually fails where there is a power imbalance, a history of intimidation, or where one party will not engage at all. Even when it fails, a written record of the issues attempted helps any later process move faster. Where children are involved, parents who have tried and documented a direct approach give the next professional — mediator, collaborative lawyer, or court — a clearer starting point.

Option 2: Accredited Family Law Mediation

In accredited family mediation, a neutral, qualified mediator facilitates structured negotiation. The mediator is not a judge, does not decide who is right, and cannot impose an outcome — the parties retain control throughout. Output is a settlement agreement signed by both parties, which can be made a court order.

The starting point is well established in statute. Under section 6 of the Mediation in Certain Divorce Matters Act 26 of 1987, a court will not hear a contested divorce involving minor children unless the parties have first attempted mediation — this is the formal sense in which mediation is “compulsory before court.” A typical mediation runs one to four sittings, sometimes longer for complex matters, and is materially faster than litigation. It is useful for parenting plans, asset and accrual division, spousal maintenance, and (in appropriate cases) the divorce itself.

Mediation costs are usually split between the parties and depend on the mediator’s fee structure and the complexity of the issues. An attorney with qualified family mediators on staff — such as Burger Huyser Attorneys’ Family Law team — can advise on fee arrangements at intake.

Option 3: Collaborative Law (Four-Way Meeting)

In collaborative law, each spouse is independently represented by a collaboratively trained attorney, and the parties and both lawyers meet in a structured “four-way meeting” to settle. The collaborative lawyers commit to settlement-only engagement — if the process fails and one party later litigates, both collaborative lawyers must withdraw and new counsel must be instructed. That withdrawal rule is the structural incentive built into the model.

Collaborative law is best suited to spouses who want to keep decision-making with the lawyers present rather than mediated by a third party. It settles most cases that mediation settles, but with legal advice in the room from the start. Costs are typically higher than mediation and lower than fully contested litigation.

Option 4: Contested Divorce Through the Courts

When no out-of-court route works, the matter moves to a contested divorce through the Regional Court or the High Court. Filing is by way of a combined summons (Regional Court) or a petition (High Court) under the Divorce Act 70 of 1979. The court has power to grant the divorce, decide on patrimonial consequences, and make children’s arrangements.

Two interim-relief tools often do the heavy lifting while the divorce is pending:

• Rule 43 of the Uniform Rules of Court — allows interim maintenance, interim care of children, and contribution towards legal costs to be applied for urgently, often the fastest way to unlock basic cash flow and arrangements.
• The Family Advocate’s office — established under the Family Advocate Act 24 of 1993; investigates and makes recommendations on children’s interests in disputed matters.

This is the slowest and most expensive route, and is best reserved for cases where the other pathways genuinely cannot work. For Gauteng-based spouses, instructions can be moved between Burger Huyser Attorneys’ branches across the province as a matter develops, which is helpful where one party relocates during proceedings.

Special Case 1: Children and the Family Advocate

In any of the pathways above, disputes about parental responsibilities — care, contact, maintenance, and decision-making — trigger the Family Advocate’s involvement if the matter goes to litigation. In mediation or collaborative law, the Family Advocate is not automatically involved, but a parenting plan agreed between the parties can still be made a court order.

Section 7 of the Children’s Act 38 of 2005 sets “the best interests of the child” as the paramount consideration in any dispute involving children, regardless of which pathway is chosen. That statutory standard is the lens through which any parenting plan, court order, or Family Advocate recommendation is judged. Burger Huyser Attorneys’ Family Law department handles both the mediation and the contested-litigation tracks, which means parenting plans drafted in mediation can move into a court order without changing firms if that becomes necessary.

Special Case 2: When the Dispute Involves Violence, Threats, or Refusal to Engage

Domestic violence, intimidation, or persistent harassment takes the matter onto a different track. An application for a protection order under the Domestic Violence Act 116 of 1998 is available at any magistrate’s court and runs independently of any family-law dispute-resolution process; it can be in place in parallel while mediation or litigation continues.

Three further points worth noting:

• Refusal by one spouse to engage in mediation or collaborative law is not itself grounds for refusing to grant a divorce — the matter simply moves to contested litigation.
• Where maintenance is in dispute and the spouse is not paying, a maintenance order application under the Maintenance Act 99 of 1998 at the magistrate’s court is the direct route, separate from the divorce.
• Ongoing safety concerns can be layered onto any of the family-law pathways described above — a protection order and a divorce action can run side by side.

How to Choose Between These Options

A practical sequence, from the lowest-conflict pathway upward:

1. Start with the lowest-conflict pathway that is realistic. Most spouses settle before any contested hearing, and a direct conversation or mediation is often enough.
2. Involve children early through a family mediator or Family Advocate if parenting decisions are in dispute.
3. Bring in a collaborative lawyer if mediation has failed but both parties still want an out-of-court settlement.
4. Move to contested divorce when no out-of-court route is workable, when interim relief under Rule 43 is urgent, or when one party will not engage at all.
5. For ongoing safety concerns, layer a protection order onto whatever family-law route is being followed.

The right choice is the lowest-cost pathway both parties can genuinely engage with, not the most legally sophisticated one. A firm with qualified family mediators on staff, a dedicated Divorce Law practice, and branches across Gauteng — like Burger Huyser Attorneys — can take a spouse through each of these steps from a single point of contact.

Frequently Asked Questions

What can I do if my spouse and I cannot agree on something — where do I start?

Start by listing the specific issues you disagree on and attempting a direct conversation with the information you both need. If that fails — or if the level of conflict makes conversation impractical — engage an accredited family law mediator first. Under the Mediation in Certain Divorce Matters Act 26 of 1987, mediation is in any event the required step before a contested divorce involving minor children, so starting there is rarely wasted effort.

Is mediation legally required before divorce in South Africa?

Where the divorce is contested and there are minor children, the court will not hear the matter until the parties have attempted mediation and produced either a settlement or a certificate that mediation did not resolve the dispute (section 6 of the Mediation in Certain Divorce Matters Act 26 of 1987). In other contexts — agreed divorces, no minor children, or non-divorce disputes — mediation is not formally compulsory but is still often the fastest, cheapest route.

What happens if my spouse simply refuses to mediate or negotiate at all?

Mediation cannot force an unwilling party into a settlement, so the matter will usually move into contested divorce proceedings through the Regional Court (or the High Court, depending on the value and complexity of the dispute). Interim relief under Rule 43 of the Uniform Rules of Court — interim maintenance, interim care of children, and contribution to legal costs — can be sought urgently while the divorce is pending.

How long does mediation take, and how much does it cost?

A straightforward mediation typically runs between one and four sittings over a few weeks and is materially cheaper than contested litigation. Costs depend on the mediator’s fee structure and the complexity of the issues, and the parties usually split the mediator’s fees. Burger Huyser Attorneys’ Family Law team can confirm current fee arrangements at intake.

Can I divorce my spouse without their agreement?

Yes. South Africa’s Divorce Act 70 of 1979 allows for contested divorce where one party seeks the divorce and the other does not consent, or where the terms cannot be agreed. The process is slower than an agreed divorce and may require a trial, but it remains available as a final pathway when negotiation, mediation, and collaborative law have all failed.

What is the Family Advocate, and when does the Family Advocate get involved?

The Family Advocate (appointed under the Family Advocate Act 24 of 1993) is a state-appointed officer whose role is to investigate and make recommendations on matters affecting children in family law disputes. In contested divorces involving minor children the Family Advocate typically prepares a report and makes recommendations to the court. In mediation or collaborative law the parties can still arrange a Family Advocate evaluation to support their parenting plan.

Talk to the Family Law team at Burger Huyser Attorneys. If you and your spouse are stuck and cannot resolve a dispute on your own, the firm’s Family Law team can help you work out which pathway — direct negotiation, accredited mediation, collaborative law, or contested divorce — fits your situation. Qualified family mediators are on staff, the firm takes instructions for both agreed and contested divorces, and instructions can run from any of the Gauteng branches (Linden, Sandton, Roodepoort, Bedfordview, Alberton, Midrand, Pretoria, or Centurion). Call the head office on 011 888 0246 (after-hours 061 516 6878) or your nearest branch to book an intake conversation; the firm is open Monday to Friday, 7:30am to 4:30pm, and will give you an honest cost conversation up front. The practice is recognised for family law work across Best Family Law Firm 2024 (Lawyers Monthly), Family Law Firm of the Year 2024 (MEA), and Most Client Focused Family Law Firm 2022 (Acquisition International), and carries a 4.8/5 average across 250+ Google reviews (Trustindex verified “Top Rated Law Firm in South Africa”).