The Ultimate Divorce Mediation Checklist for Couples in South Africa

A South African divorce mediation checklist has three working parts: a documents pack (marriage certificate, IDs, a sworn asset and liability schedule, children’s birth certificates, recent financial statements, and a draft of the issues to resolve), a mediator-interview checklist (accreditation, fee structure, confidentiality, whether the agreement will be made a court order under the Mediation in Certain Divorce Matters Act 24 of 1987), and a decision-points checklist covering the marriage regime, division of the joint estate, spousal and child maintenance, care and contact of minor children, and pension or insurance entitlements. Most couples settle in three to five two-hour sessions over six to ten weeks, and any mediated agreement can be made an order of court on application.

What Divorce Mediation Is (and What It Is Not)

Divorce mediation is a voluntary, confidential dispute-resolution process in which a neutral accredited mediator helps a separating couple reach their own agreement on the issues that must be decided before a divorce can be granted. It is governed nationally by the Mediation in Certain Divorce Matters Act 24 of 1987, which also provides for a mediated agreement to be made an order of court. The mediator facilitates — they do not decide, give legal advice, or represent either party.

• Not marriage counselling. Counselling focuses on whether the marriage can be saved; mediation assumes it is ending and focuses on how.
• Not collaborative divorce. Collaborative divorce is a structured legal process where each party instructs a collaboratively trained attorney and commits to resolving without going to court; mediation is a single neutral process sitting alongside legal advice.
• Not court-based litigation. A judge does not decide your issues; the mediator does not decide them either.

Mediation is particularly useful where the parties want to settle without the cost and delay of defended litigation, and where there are minor children whose best interests require a co-parenting plan rather than an adversarial outcome.

Is Mediation Right for Your Situation? Quick Suitability Check

Mediation is a good fit where both parties are willing to negotiate in good faith, are roughly on equal footing, and can participate without fear or coercion. It is less suitable where there is ongoing domestic violence, a severe power imbalance, hidden assets, or one party refuses to disclose financial information. Some courts require (or strongly encourage) mediation before a defended divorce can be set down, depending on the judicial district.

Sign mediation is likely to work	Sign mediation may not be appropriate
Both parties willing to negotiate honestly	Ongoing domestic violence or a current protection order
Reasonably equal bargaining position	Severe duress, intimidation, or coercion
Financial disclosure is on the table	Suspected hidden assets or refusal to disclose
Both parties prepared to put children’s interests first	One party is using the process to delay

Documents to Gather Before Your First Mediation Session

Pull these together in a single folder before intake:

Category	What to bring
Identity	South African ID or valid passport for both spouses
Marriage	Marriage certificate (unabridged if registered outside South Africa and later recognised here)
Marriage regime	Antenuptial contract (ANC) if one was executed, or confirmation that the marriage is in community of property
Children	Birth certificates and any existing parenting plan, maintenance order, or protection order
Assets and liabilities	A sworn or signed joint statement of assets and liabilities at the date of separation
Income and tax	Recent payslips, IRP5 or IT3(t) certificates, and the last two years’ tax returns (ITR12 or ITR14)
Bank accounts	Statements for the joint and relevant separate accounts for the last six to twelve months
Credit and loans	Statements for any bond, vehicle finance, credit cards, store accounts, and personal loans
Retirement	Pension fund, provident fund, and retirement annuity statements for both spouses
Insurance	Policy schedules and recent premium statements for life, short-term, and medical aid
Mediation agenda	A draft list of the issues to resolve, in priority order
Correspondence	Any prior correspondence between the parties or with attorneys that bears on the issues

Both parties are expected to disclose the same set of documents. The mediator typically asks for the pack at intake or shortly after, so the negotiation sessions start with a complete financial picture.

Questions to Ask the Mediator at the First Contact

Treat the first contact as an interview:

• Accreditation: Accredited under the Mediation in Certain Divorce Matters Act, or through a recognised voluntary body such as the South African Association of Mediators (SAAM)?
• Fees: Fixed fee per session, hourly rate, or a package — and is the first intake session charged separately?
• Session count and timeframe: How many sessions for a divorce with our issue profile, and over what time frame?
• Settlement drafting: Will the mediated agreement be drafted into a settlement agreement we can file with the divorce court?
• Confidentiality: What can and cannot be disclosed without our consent?
• Failure points: What happens if we cannot reach agreement — do we revert to litigation, and is mediation work product protected later?
• Shuttle mediation: Do you offer shuttle mediation if direct joint sessions are not workable?
• Availability: Are you available for urgent or after-hours sessions if circumstances require it?

The Decisions a Mediation Has to Reach

Every divorce mediation has to land on a defined set of decisions:

Decision point	What has to be agreed
Marriage regime	Confirm whether in or out of community of property, and if out, whether the accrual system applies
Division of the joint estate	Value, allocation, and sale or transfer of the matrimonial home, vehicles, investments, and business interests
Pension and retirement interests	Whether the non-member spouse will receive a portion of the member spouse’s pension interest under section 7(8) of the Divorce Act 70 of 1979, and how it will be implemented
Spousal maintenance	Whether either party will pay maintenance to the other, amount, duration, and review trigger
Child maintenance	Amount each parent will contribute, in line with the Child Maintenance Act and prevailing maintenance guidelines
Care and contact of minor children	Primary residence, contact schedule, and decision-making responsibility, with the Children’s Act 38 of 2005’s best interests of the child standard as the test
Debt allocation	Which party is responsible for which outstanding debts, and how joint accounts will be closed
Tax and SARS obligations	How tax implications of any asset transfer will be handled and who bears any resulting liability
Future claims	Whether either party will retain a right to claim further maintenance or property adjustment in defined circumstances

The Mediation Process, Step by Step

1. Initial intake. Each party (or both together) attends a first session to confirm suitability, sign the mediation agreement, and set the agenda.
2. Information gathering. Both parties disclose the documents and financial information needed to make informed decisions.
3. Issue identification. The mediator works with the couple to list the issues and the order in which they will be addressed.
4. Negotiation sessions. Typically three to five two-hour sessions over six to ten weeks, focused on each issue in turn.
5. Tentative agreement. Once the parties reach agreement on an issue, the mediator records it in writing and moves to the next.
6. Settlement drafting. Once all issues are agreed, the mediator or the parties’ attorneys draft a settlement agreement, which both parties sign.
7. Court application. The settlement agreement is filed with the divorce court under section 7 of the Mediation in Certain Divorce Matters Act 24 of 1987, and the parties apply for it to be made a court order.
8. Review and closure. The mediator reviews the final order with the parties, confirms next steps, and closes the file.

What a Mediated Settlement Agreement Must Contain

A mediated settlement agreement is the single document the divorce court will look at when deciding whether to grant the divorce. It must be complete, signed, and capable of being enforced. At a minimum, it should cover:

• Full identification of both parties, the marriage, and any minor children
• The marriage regime and the basis on which the joint estate is to be divided
• Specific orders on the matrimonial home (sale, transfer, or buy-out) and any other major assets
• Specific orders on debt allocation and closure of joint accounts
• Spousal maintenance terms — amount, payment date, duration, and review trigger
• Child maintenance terms — amount, payment mechanism (usually the Maintenance Court), and allocation of variable costs
• Care and contact arrangements — primary residence, contact schedule, and decision-making responsibility
• Pension interest division under section 7(8) of the Divorce Act 70 of 1979, including the percentage and the implementing mechanism
• A clause recording that the agreement was reached freely and voluntarily, without duress
• Signature of both parties, the mediator, and (if applicable) each party’s attorney

Each party is generally expected to obtain independent legal advice on the settlement agreement before signing, even though the mediator does not represent either side.

Cost, Timeline, and Practical Considerations

Mediation typically costs a fraction of defended divorce litigation, but the fee structure varies — fixed fee per session, hourly rate, or all-inclusive package are all common. Couples who reach impasse on a single issue can still mediate the rest and litigate only that one point, which is faster and cheaper than full contested proceedings.

Stage	Typical duration
Intake and document gathering	1 to 2 weeks
Negotiation sessions (3 to 5, two hours each)	6 to 10 weeks
Settlement drafting and signing	2 to 4 weeks
Court application and divorce granted	2 to 4 weeks
Total from first consultation to final order	Approximately 3 to 5 months

How Burger Huyser Handles Divorce Mediation

Burger Huyser Attorneys’ Divorce Law practice is staffed by qualified mediators who coordinate the process alongside the firm’s litigation and family-law teams. Mediations can be booked at the Linden (Randburg) head office at 49 First Avenue (011 888 0246) or at any of the Gauteng branch offices — Sandton, Roodepoort, Pretoria (Menlyn), Centurion, Bedfordview, Alberton, and Midrand. Where the matter includes defended issues, the firm’s litigation team can take over on the contested points without the parties needing to retell their matter to a new firm. The firm carries a 4.8/5 average across 250+ Google reviews (Trustindex verified “Top Rated Law Firm in South Africa”), and a first consultation at the chosen branch lays out the issue list, fee structure, and likely session count before any engagement is signed.

Frequently Asked Questions

Do we have to go to court if we mediate?

No for the mediation itself — sessions are private. You will still need to apply to a divorce court for the divorce to be granted, and a mediated settlement can be made a court order under the Mediation in Certain Divorce Matters Act 24 of 1987.

How long does divorce mediation take in South Africa?

Most couples reach a full settlement in three to five two-hour sessions over six to ten weeks, with a further four to eight weeks to draft the settlement agreement and have the divorce granted.

Can we mediate if we cannot be in the same room?

Yes — many mediators offer shuttle mediation, where the parties attend separate sessions and the mediator moves between them, useful where the relationship is high-conflict or where there is a protection order in place.

Is a mediated agreement legally binding?

Yes, as a contract once signed. To make it enforceable in the same way as a court order, it must be made an order of court on application under section 7 of the Mediation in Certain Divorce Matters Act 24 of 1987.

Do we still need a divorce attorney if we mediate?

Strongly recommended. The mediator does not give legal advice, and each party should obtain independent legal advice on the settlement before signing. Burger Huyser Attorneys’ Divorce Law team can advise on a mediated settlement and, if needed, take over any contested issues.

What does divorce mediation cost in South Africa?

It depends on the mediator’s fee structure (fixed per session, hourly, or package) and the number of sessions needed. As a general guide, mediation costs a fraction of defended divorce litigation. Burger Huyser Attorneys confirms the fee structure and likely session count at the first consultation.

Can we mediate if there are children involved?

Yes — and mediation is often the preferred route where there are minor children, because the parents themselves design the care, contact, and maintenance arrangements. The Children’s Act 38 of 2005’s best interests of the child standard still applies.

What happens if mediation fails?

If the parties cannot reach agreement on an issue, they can either move that single issue to litigation (mediating the rest in parallel) or proceed to defended divorce proceedings. The mediator’s work product is generally protected and not admissible in later court proceedings.

Burger Huyser Attorneys’ Divorce Law team includes qualified mediators and can take you from the first intake session through to a settlement agreement made an order of court under the Mediation in Certain Divorce Matters Act. The firm runs mediations from its Linden (Randburg) head office at 49 First Avenue (011 888 0246) and from its Gauteng branches in Sandton, Roodepoort, Pretoria (Menlyn), Centurion, Bedfordview, Alberton, and Midrand — pick the office that suits you both. Initial consultations lay out the issue list, fee structure, and likely session count before any engagement is signed.