Divorce Procedures to Start the Divorce Process in South Africa

To start divorce proceedings in South Africa, the plaintiff has a summons issued out of a court with jurisdiction and served on the defendant by the sheriff, citing irretrievable breakdown under section 4 of the Divorce Act 70 of 1979. Section 2(1) gives a court jurisdiction where either party is domiciled in its area on the date the action is instituted, or is ordinarily resident there on that date and has been ordinarily resident in South Africa for at least one year beforehand.

The Statutory Framework: How Divorce Is Governed in South Africa

The Divorce Act 70 of 1979 is the controlling statute.

Provision	What it governs
Section 2	Jurisdiction
Section 3	Two grounds of divorce
Section 4	Irretrievable breakdown
Section 6	Safeguarding minor and dependent children
Section 7	Division of assets and maintenance
Section 9	Forfeiture of patrimonial benefits

The Matrimonial Property Act 88 of 1984 governs asset division, the Children’s Act 38 of 2005 governs children, and the Mediation in Certain Divorce Matters Act 24 of 1987 creates the Family Advocate. The Divorce Amendment Act 1 of 2024 (in force 14 May 2024) extends the Divorce Act to Muslim marriages.

Grounds and the “Irretrievable Breakdown” Test

Section 3 allows only two grounds: irretrievable breakdown, and the mental illness or continuous unconsciousness of a party. Almost every divorce uses the first, which is no-fault — the plaintiff proves no misconduct, only that the marriage has, in the words of section 4(1), reached “such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship”. Section 4(2) sets out what is accepted as proof:

• the parties have not lived together as husband and wife for a continuous period of at least one year;
• the defendant has committed adultery and the plaintiff finds it irreconcilable; or
• the defendant has been declared an habitual criminal and is serving a resulting sentence.

These are evidentiary shortcuts. Section 4(3) allows the court to postpone proceedings where reconciliation looks possible.

Choosing the Right Court: Regional Divorce Court Forums

Since 9 August 2010, when the Jurisdiction of Regional Courts Amendment Act 31 of 2008 redefined “court” in the Divorce Act, a divorce may be heard either by a High Court or by a magistrates’ court for a regional division under section 29(1B) of the Magistrates’ Courts Act 32 of 1944. The regional court is the ordinary forum.

Section 2(1) jurisdiction rests on two grounds only — domicile, or ordinary residence plus at least one year’s ordinary residence in South Africa. Where the marriage was solemnised is legally irrelevant; the word does not appear in the Act.

The Procedure, Step by Step

1. Pre-filing preparation. Confirm the ground, collate the marriage certificate, identity documents, any antenuptial contract and financial records, establish which court has jurisdiction.
2. Drafting the summons. The attorney prepares a combined summons citing section 4, with particulars of claim annexed.
3. Issue by the clerk or registrar. The clerk of the court or registrar issues the summons and allocates a case number.
4. Service by the sheriff. The sheriff serves the summons and particulars of claim and files a return of service.
5. The defendant’s response. Ten court days to deliver a notice of intention to defend, twenty court days to file a plea.
6. Uncontested route. The settlement agreement, draft order and supporting papers are filed and the matter is enrolled on the unopposed roll.
7. Contested route. Pleadings, discovery, expert reports where needed, pre-trial conference and trial.
8. Granting of the decree. The court grants the decree once satisfied that service was proper and that section 6 is met.
9. Post-order administration. Certified copy of the decree, recording by Home Affairs, updating of wills and pension records.

Contested vs. Uncontested Divorce: A Comparison

Aspect	Uncontested	Contested
Settlement	Reached early and incorporated under section 7(1)	Negotiated during pleadings or decided at trial
Pleadings	Summons only; no plea	Summons, plea, counterclaim, replication
Typical timeline	About 4–8 weeks if papers are clean	Six months to several years
Cost drivers	Issue and sheriff’s fees, drafting, set-down	Discovery, expert and counsel’s fees, trial preparation
Mediation	Useful for finalising terms	Frequently encouraged where children are involved

Many matters that begin as contested settle once the financial position is disclosed, which makes early mediation the cheapest intervention. Burger Huyser Attorneys has qualified divorce mediators on staff.

What the Plaintiff’s Summons Must Contain

• the court and the division or district in which it sits;
• both parties, with domicile or ordinary residence pleaded to establish jurisdiction under section 2;
• the date and place of marriage, the matrimonial property regime, and any antenuptial contract;
• citation of section 4 and an averment that the marriage has broken down irretrievably;
• particulars of minor or dependent children and arrangements for care, contact and maintenance;
• the relief sought — decree of divorce, division of the estate or accrual claim, spousal and child maintenance, and any forfeiture claim under section 9;
• the particulars of claim, annexed and addressing each substantive issue.

Service and What Happens If the Defendant Cannot Be Served

Personal service by the sheriff is the default, and the sheriff’s return of service is the proof the court relies on. A divorce will not be granted unless the court is satisfied that service was properly effected, or properly dispensed with by order.

Where a defendant evades service or cannot be traced, the plaintiff applies for substituted service, supported by an affidavit setting out the attempts to find them. The court then authorises a method reasonably likely to bring the summons to the defendant’s attention. Where the defendant is outside South Africa, leave for edictal citation is required.

Ancillary Issues: Property, Maintenance, and Children

Property. Division follows the Matrimonial Property Act 88 of 1984: in-community estates are shared equally, out-of-community estates divide according to the antenuptial contract. Section 9 allows forfeiture of patrimonial benefits where a party would otherwise be unduly benefited. Section 7(3) permits a redistribution of assets in certain out-of-community marriages, and in EB v ER; KG v Minister of Home Affairs [2023] ZACC 32 the Constitutional Court confirmed the date limitation confining that remedy to marriages before 1 November 1984 is unconstitutional.

Maintenance. Section 7(2) directs the court to weigh each party’s means, earning capacity, financial needs, age, the duration of the marriage, the standard of living, and conduct relevant to the breakdown.

Children. Section 6(1) prohibits granting a decree until arrangements for any minor or dependent child are satisfactory, or the best achievable. Where the Family Advocate has instituted an enquiry, the court must consider that report first.

Common Procedural Pitfalls and How to Avoid Them

Common Procedural Pitfalls and How to Avoid Them

Pitfall	How to avoid it
Issuing in a court without jurisdiction	Check domicile or ordinary residence against section 2(1) before drafting
Defective or unproved service	Use the sheriff for the correct district and file the return
Misstating the property regime	Obtain the antenuptial contract from the Deeds Office
Settling ancillary issues informally	Reduce all terms to writing and have them made an order under section 7(1)
Not updating Home Affairs	Confirm the divorce is recorded, then update wills and pension records

Most of these are avoidable at the drafting stage. Burger Huyser Attorneys’ Family Law department handles divorce filings across the firm’s Gauteng branches.

What Happens After the Divorce Is Granted

The marriage is dissolved when the court grants the decree. Each party should obtain a certified copy and confirm the divorce has been recorded by the Department of Home Affairs, since an unrecorded divorce causes problems later.

The decree is required to remarry, update a will, and administer the deceased estate of either former spouse. Section 8 allows a maintenance or children’s order to be rescinded, suspended or varied where there is sufficient reason — typically a material change in circumstances.

If you are at the point of starting a divorce — whether uncontested or contested — Burger Huyser Attorneys’ Divorce Law team can take you through the procedural steps and the settlement, maintenance and children’s issues that attach to them. The firm practises from branches across Gauteng, with family law teams in Linden (Randburg, 011 888 0246), Sandton (011 253 3080), Pretoria (Menlyn, 012 471 5700), Centurion (012 644 4990) and Bedfordview (011 201 7190). The firm carries a 4.8/5 average across more than 250 Google reviews (Trustindex verified, “Top Rated Law Firm in South Africa”) and was named Best Family Law Firm 2024 – South Africa at the Lawyers Monthly Legal Awards 2024 and Family Law Firm of the Year 2024 – South Africa at the MEA Business Awards 2024.

Frequently Asked Questions

How do I start the divorce process in South Africa?

Your attorney drafts a summons and particulars of claim citing irretrievable breakdown under section 4 of the Divorce Act 70 of 1979, files it so the clerk or registrar can issue it, then instructs the sheriff to serve it. Your spouse then has ten court days to deliver a notice of intention to defend.

Which court has jurisdiction to hear my divorce?

Under section 2(1) of the Divorce Act 70 of 1979, a court has jurisdiction if either spouse is domiciled in its area on the date the action is instituted, or is ordinarily resident in its area on that date and has been ordinarily resident in South Africa for at least one year beforehand.

What are the grounds for divorce in South Africa?

Section 3 of the Divorce Act 70 of 1979 recognises only two grounds: irretrievable breakdown of the marriage, and the mental illness or continuous unconsciousness of a party. Almost every divorce relies on irretrievable breakdown.

What happens if my spouse cannot be found or refuses to accept the summons?

You apply to court for substituted service, supported by an affidavit setting out the attempts made to trace your spouse. The court may authorise service at a named address, electronically, or by publication in a newspaper. If they are outside South Africa, leave for edictal citation is required.