How Divorce Proceedings Work in South Africa

Divorce in South Africa is governed by the Divorce Act 70 of 1979, which — after the 2024 amendments — recognises irretrievable breakdown of the marriage as the sole ground for divorce and requires parties with minor children to attend a mediation information session before trial. Two procedural routes run through the system: an uncontested divorce on a settlement agreement, typically finalised within four to eight weeks of filing on a clean file, and a contested divorce that proceeds through pleadings, discovery, possible trial and the Family Advocate’s recommendation. A Gauteng-resident file typically lands in the Regional Magistrate’s Court or in the Gauteng Division of the High Court, depending on the matter’s complexity.

The Statute: Divorce Act 70 of 1979 and the 2024 Amendments

The principal statute is the Divorce Act 70 of 1979, which sets out the grounds for divorce, the procedural routes available to the parties, and the court’s powers on ancillary questions such as children, property and maintenance. The Act is administered by the Department of Justice and Constitutional Development.

The Divorce Amendment Act 1 of 2024, signed into law on 14 May 2024, made the following substantive changes:

• It confirms irretrievable breakdown of the marriage as the sole ground for divorce.
• It introduces a mandatory mediation information session before trial for parties with minor children.
• It amends the Family Advocate and public-family-lawyers involvement in divorce files.

“No-fault” divorce was effectively the position in South Africa before 2024 as well; the 2024 amendment consolidates this rather than introducing the no-fault concept from scratch. Ancillary issues — custody, care, contact, maintenance and the division of assets — are not themselves grounds for divorce. The court grants a decree on the basis of irretrievable breakdown, then decides the ancillary questions either from a settlement agreement or after hearing evidence.

The Two Routes: Uncontested vs Contested Divorce

Every divorce file in South Africa runs along one of two procedural paths. The route is determined by whether the parties agree on all terms.

Factor	Uncontested divorce	Contested divorce
Basis	Parties agree on all terms — children, property, maintenance.	One or more issues are genuinely disputed.
Typical duration (clean file)	4–8 weeks from filing to decree.	6–18 months depending on issues and court roll.
Filing venue	Regional Magistrate’s Court (subject to jurisdictional limits) or the Gauteng Division of the High Court.	Almost always the High Court (Gauteng Division, Johannesburg or Pretoria seat).
Settlement agreement	Required, signed by both, filed with the summons.	Not required at filing; may be reached late or imposed at trial.
Family Advocate	Report may be dispensed with on consent where the court is satisfied the children’s interests are protected.	Mandatory report on the best interests of minor children before trial.
Mediation information session (post-2024)	Not required if the matter is settled and there are minor children, on the court’s acceptance.	Required before trial for parties with minor children.

The Uncontested Divorce Process, Step by Step

1. Both parties consult on the terms of the settlement — custody, care, contact, maintenance and the division of assets.
2. The plaintiff consults an attorney (or files personally) and a summons with supporting affidavits and a settlement agreement is drafted and signed by both parties.
3. Where the parties have minor children, the plaintiff deposes to an affidavit confirming the children’s best interests are protected by the settlement. Post-2024 amendments require confirmation that any mediation information session obligation has been addressed.
4. The summons and supporting papers are filed in the Regional Magistrate’s Court of the district where either party resides — or in the Gauteng Division of the High Court where the matter is outside the Regional Court’s competence. Confirm the current jurisdictional thresholds under section 9 of the Divorce Act at the time of publication.
5. Service on the defendant by the sheriff of the court; the defendant enters an appearance and confirms acceptance of the relief claimed.
6. The matter is set down for an unopposed divorce hearing — typically 10–20 minutes per file.
7. The decree of divorce is granted, and a copy is sent to the Department of Home Affairs for re-registration of the marriage status.
8. The plaintiff receives the decree of divorce and may update the marital status at Home Affairs; the parties remain bound by the settlement agreement as an order of court.

The Contested Divorce Process, Step by Step

1. The plaintiff consults an attorney and a summons with particulars of the relief claimed (custody, maintenance, property division) is issued.
2. The defendant enters an appearance to defend — the matter becomes contested.
3. Pleadings — the plaintiff files a declaration / particulars of claim; the defendant files a plea; further pleading steps (replication, rejoinder) may follow.
4. Discovery — parties exchange documents under rule 35 of the Uniform Rules of Court.
5. Interim relief — either party may approach the court for interim maintenance, a domestic-violence protection order or interim custody pending trial.
6. Family Advocate’s report — for matters with minor children, the matter is referred to the Office of the Family Advocate (or designated family lawyer) for an investigation and a recommendation on the children’s best interests.
7. Mediation information session (post-2024) — for matters involving minor children where trial is contemplated, parties must attend a mediation information session before the trial date.
8. Pre-trial conference — parties narrow the issues, attempt settlement and prepare a pre-trial minute.
9. Trial — evidence is led; in family matters the trial is normally by oral evidence before a judge.
10. Decree and ancillary orders — the court grants a decree of divorce and makes orders on custody, care, contact, maintenance and property division. Either party may appeal on the ancillary orders.

The Family Advocate’s Role

Where the divorce involves minor or dependent children, the matter is referred to the Office of the Family Advocate for an investigation and a recommendation. The Family Advocate interviews the parties, may interview the children, and files a report setting out what arrangements are in the children’s best interests. The factors the court weighs are set out in section 7 of the Children’s Act 38 of 2005.

The court is not bound by the Family Advocate’s recommendation but must consider it — a report that flags concerns (typically regarding a parent’s suitability) often determines the outcome on custody. Post-2024 amendments expand the role of designated family lawyers alongside the Family Advocate.

Property, Antenuptial Contracts and the Section 7 Pension Interest Rule

The matrimonial property regime determines how the parties’ assets are divided on divorce. Three regimes operate in South Africa under the Matrimonial Property Act 88 of 1984:

Regime	Effect on divorce
In community of property	The joint estate is divided equally between the parties on divorce.
Out of community of property (with accrual)	Each party retains their own separate estate, but on divorce the accrual (growth of each estate during the marriage) is shared equally.
Out of community of property (without accrual)	Each party retains their own estate and there is no sharing of accrual.

An antenuptial contract (ANC) is the document that determines the matrimonial property regime. Parties who married without an ANC are married in community of property unless the court approves a postnuptial settlement under section 21 of the Matrimonial Property Act.

Section 7 of the Divorce Act addresses a common point of confusion: a non-member spouse of a pension fund has a claim against the member spouse’s pension interest, treated as part of the assets to be divided. The court makes a section 7 order and the fund pays out in terms of the Pension Funds Act 24 of 1956.

Maintenance and Children’s Arrangements

The court has full power to make orders regarding maintenance for children under the Maintenance Act 99 of 1998 framework and the common-law duty of support. The court determines custody (sole or joint) and care and contact — typically the parent with whom the child primarily lives has care, and the other parent has contact in terms of a court-ordered regime.

Section 6 of the Divorce Act requires the court to be satisfied that the children’s best interests have been considered before granting a decree where children are involved. The factors are set out in section 7 of the Children’s Act 38 of 2005.

Service, Timing and the Practical Side

Service of the summons is by the sheriff of the court under the Uniform Rules of Court — usually a single attempt suffices for an uncontested divorce where the defendant co-operates. Where the defendant cannot be located, service by edict (publication in a local newspaper, among other steps) is available as an alternative.

The uncontested divorce can finalise within four to eight weeks from filing on a clean file. The contested divorce runs to six to eighteen months depending on the issues, the court’s roll, and the Family Advocate’s workload. Court fees, sheriff’s fees and attorney fees are all separate cost lines. The order of costs is typically in favour of the successful party in a contested matter, but in family matters the court often declines to make a costs order.

The Financial Aftermath

A divorce has significant financial consequences beyond the legal file — joint bank accounts, joint debts, the marital home, and the parties’ estates. Banks and financial advisors typically advise affected parties to:

• Close joint accounts and notify creditors of the change in marital status.
• Reassess the bond on the marital home and decide whether one party will retain it or both will sell.
• Update insurance beneficiaries (life and funeral cover) where the former spouse is currently named.
• Review pension fund nominations and provident fund beneficiary structures.
• Update a will and any trust beneficiary nominations — divorce does not automatically revoke a bequest to a former spouse.

The Department of Home Affairs publishes the official process for re-registration of marital status after a decree of divorce.

Divorce Proceedings in Gauteng: Regional Court vs Gauteng Division

Frequently Asked Questions

How long does a divorce take in South Africa?

An uncontested divorce on a clean file typically takes 4–8 weeks from filing to decree. A contested divorce typically runs 6–18 months.

How much does a divorce cost in South Africa?

Costs depend on the route. An uncontested divorce is generally charged as a fixed-fee service by attorneys; court fees, sheriff’s fees and counsel’s fees are additional. A contested divorce is usually billed on a time-and-disbursements basis. Burger Huyser Attorneys quotes on a per-file basis after the initial consultation.

Do you have to go to court to get divorced in South Africa?

Yes — even an uncontested divorce requires a brief court appearance (typically 10–20 minutes in the Regional Magistrate’s Court) before the decree is granted.

Can you get divorced without a lawyer in South Africa?

A plaintiff may file personally on an uncontested divorce where the parties agree on all terms and there are no minor-children complications. The Department of Justice and Constitutional Development publishes guidance for self-represented litigants. For any contested matter, instructing an attorney is the practical route.

Do both parties have to agree to the divorce?

No — irretrievable breakdown is the sole ground for divorce under the Divorce Act 70 of 1979 (as amended by the Divorce Amendment Act 1 of 2024), and one party’s application can proceed even if the other party opposes it. The contested route is, however, significantly slower and more expensive.

What is the role of the Family Advocate in a divorce?

The Office of the Family Advocate investigates and reports to the court on what arrangements are in the best interests of minor children — custody, care and contact. The court considers (but is not bound by) the Family Advocate’s recommendation before granting a decree.

How does the matrimonial property regime affect the divorce?

It determines how the parties’ assets are divided on divorce. In community of property — the default if there is no antenuptial contract — the joint estate is divided equally. Out of community of property with accrual — each party keeps their own estate but shares the growth during the marriage. Out of community of property without accrual — each party keeps their own estate and there is no sharing.

What is the mediation information session introduced by the 2024 amendments?

The Divorce Amendment Act 1 of 2024 introduces a mandatory mediation information session before trial for parties with minor children. It is a procedural gateway, not a settlement attempt by the court — confirmation that the session was attended is filed with the court before trial can proceed.

If you are considering a divorce or have been served with a summons, Burger Huyser Attorneys’ Divorce Law team can take you through the process — from the first consultation and settlement negotiation through to the unopposed hearing in the Regional Court or the contested litigation in the Gauteng Division. The firm handles both uncontested and contested divorces, with qualified mediators on staff, and fields the work from its head office in Linden (49 First Avenue, Linden, Randburg, 011 888 0246) and branches across Gauteng, including Sandton (011 253 3080), Bedfordview (011 201 7190), Centurion (012 644 4990), Pretoria (012 471 5700), Roodepoort (011 668 0030), Alberton (011 439 3990) and Midrand (010 022 4082). The firm carries a 4.8/5 average across 250+ Google reviews (Trustindex verified “Top Rated Law Firm in South Africa”) and has been awarded Best Family Law Firm 2024 (Lawyers Monthly) and Family Law Firm of the Year 2024 (MEA Business Awards). Initial consultations are booked through any of the Gauteng branches above.