What Are the Divorce Laws in South Africa?

Divorce is a life-changing event, and understanding the legal framework in South Africa can help ease the process. Divorce laws in South Africa are governed by the Divorce Act 70 of 1979 and related legislation, which ensure a fair resolution for both parties while prioritizing the welfare of children.

The Divorce Act 70 of 1979 forms the foundation of divorce law in South Africa. This legislation outlines the grounds for divorce, the division of assets, spousal maintenance, and child custody.

Grounds for Divorce

There are three legally recognized grounds for divorce in South Africa:

  1. Irretrievable Breakdown of the Marriage:
    • The marriage relationship has broken down to such an extent that there is no reasonable prospect of reconciliation.
    • Examples include infidelity, abuse, financial disputes, or prolonged separation.
  2. Mental Illness:
    • If one spouse has been institutionalized for at least two years due to mental illness, divorce can be granted based on medical evidence.
  3. Continuous Unconsciousness:
    • If one spouse has been in a state of continuous unconsciousness for six months or longer, the other spouse can file for divorce, supported by medical proof.

Divorce Rules in South Africa

Types of Marriages Recognised for Divorce

South Africa recognizes three types of marriages, each governed by specific rules:

  • Civil Marriages: Governed by the Marriage Act and the Divorce Act.
  • Customary Marriages: Governed by the Recognition of Customary Marriages Act.
  • Civil Unions: Governed by the Civil Union Act.

Division of Assets

The division of assets depends on the marital property regime:

  1. In Community of Property: Assets and liabilities are shared equally unless a court orders otherwise.
  2. Out of Community of Property (With Accrual): Each spouse retains their assets, but the growth of their estates during the marriage is shared.
  3. Out of Community of Property (Without Accrual): Each spouse keeps their assets, and there is no sharing of growth during the marriage.

Spousal Maintenance

The court may order one spouse to pay maintenance to the other, depending on factors such as:

  • The length of the marriage.
  • The financial needs and earning capacities of the parties.

Child Custody and Maintenance

Divorce law prioritizes the best interests of the child, ensuring:

  • Fair custody and visitation arrangements.
  • Financial maintenance based on the needs of the child and the parents’ financial capacities.

How Does the Divorce Process Work in South Africa?

The divorce process in South Africa can either be contested or uncontested:

Uncontested Divorce

  • Both parties agree on all issues, including asset division, maintenance, and custody.
  • The process is faster and less expensive, often finalized within a few weeks.

Contested Divorce

  • Disputes arise over issues like finances or child custody.
  • The process involves litigation and can take months or even years to resolve, depending on the complexity of the case.

Key Considerations in Divorce Cases

Legal Representation

It’s highly advisable to seek legal counsel to protect your rights, especially in contested divorces.

Mediation

Courts often encourage mediation to resolve disputes amicably, reducing the emotional and financial toll of divorce proceedings.

Documentation

Ensure all financial records, marriage certificates, and agreements are readily available to expedite the process.

How Burger Huyser Attorneys Can Assist

At Burger Huyser Attorneys, we understand that divorce is a deeply personal and challenging experience. Our experienced legal team is here to guide you through every aspect of the process, offering:

  • Expert advice on divorce laws and property regimes.
  • Representation in court and mediation.
  • Assistance with drafting settlement agreements.
  • Support in resolving custody and maintenance disputes.

The laws on divorce in South Africa are designed to ensure a fair and equitable resolution for all parties involved. Whether your divorce is uncontested or involves complex disputes, understanding the legal framework is crucial.

If you’re considering divorce or need legal assistance, Burger Huyser Attorneys is here to help. Contact us today for compassionate and professional legal support tailored to your unique circumstances. Schedule a consultation today to take the first step toward a fresh start.

Contact Burger Huyser Attorneys, and book a consultation.

To speak to one of our experienced attorneys in South Africa for immediate assistance, contact us on the numbers below:

Randburg call 061 516 6878; Roodepoort call 061 516 0091; Sandton call 064 555 3358;  Pretoria call 064 548 4838;

Centurion call 061 516 7117; Alberton call 061 515 4699; Bedfordview call 061 536 3223

DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE