How to get a divorce in South Africa

Deciding to divorce is hard enough. Understanding the process should not be. Here is how divorce works in South Africa, step by step.

Uncontested or contested?

An uncontested divorce means you and your spouse agree on everything: how to divide your property, where the children will live and how much maintenance will be paid. You record this in a settlement agreement, which the court makes part of the divorce order. Uncontested divorces are quicker and far cheaper.

A contested divorce means you disagree on one or more issues, and the court decides after each side has set out its case. Contested divorces can take a year or more and cost significantly more in legal fees.

The grounds for divorce

You do not have to prove that anyone is to blame. The court only needs to be satisfied that the marriage has irretrievably broken down, for example because you have stopped living together, one of you has committed adultery, or one of you no longer wants to be married. The Divorce Act also recognises mental illness and continuous unconsciousness as grounds.

Step by step

1. A summons and particulars of claim are drafted, setting out what you are asking for.
2. The summons is issued at the Regional Court or High Court and served on your spouse by the sheriff.
3. Your spouse may defend the divorce within the time allowed.
4. If you reach agreement, you both sign a settlement agreement, plus a parenting plan if you have minor children.
5. The matter is enrolled for hearing. An uncontested hearing is usually short.
6. The court grants a decree of divorce, which ends the marriage.

What about the children?

If you have minor children, the court must be satisfied that the arrangements for their care, contact and maintenance are in their best interests. The Family Advocate may review your parenting plan, interview the family and make recommendations to the court.

How your marriage regime affects property

• In community of property: the joint estate, including debts, is generally divided equally.
• Out of community with the accrual system: the growth in each spouse’s estate during the marriage is shared.
• Out of community without accrual: each spouse keeps their own estate.

Customary and religious marriages. A customary marriage is ended by a court in the same way as a civil marriage. Muslim marriages are recognised for divorce purposes following a 2022 Constitutional Court judgment. The law on other religious marriages is developing, so get advice on how it applies to you.

How much does a divorce cost?

Costs vary widely. An uncontested divorce is usually far cheaper than a contested one, where fees can run many times higher. If you cannot afford a lawyer, you may qualify for help from Legal Aid South Africa or a university law clinic.

General information about South African law, not legal advice. Read our disclaimer.