Thinking about divorce in South Africa? Here’s what you need to know

Divorce in South Africa is mainly governed by the Divorce Act 70 of 1979.

If you’re considering divorce, it helps to understand:

 

• On what grounds you can get divorced
• What the court looks at
• What happens to your status, property and finances

 Grounds for divorce

 In South Africa, there are only two legal grounds for divorce:

 

• Irretrievable breakdown of the marriage
• Mental illness or continuous unconsciousness of a spouse

Irretrievable breakdown

Most divorces are granted on this ground.

It means the marriage has broken down so badly that there is no reasonable chance of getting back together. 

The cause of the breakdown is not strictly important, but the court looks at certain facts to decide whether the marriage has indeed broken down, for example:

 

• You and your spouse have not lived together as husband and wife for at least one continuous year.
• Your spouse has committed adultery, and you feel you cannot continue with the marriage.
• Your spouse has been declared a habitual criminal and is serving a sentence.

These are examples, not an exhaustive list. The court can also look at things like:

 

• Refusal of marital privileges (e.g. no physical relationship)
• Serious emotional or physical abuse
• Ongoing conflict and incompatibility
• Even your own adultery
• A clear, unilateral decision by one spouse that the marriage is over

If the court is satisfied that the relationship has broken down irretrievably, it can grant a divorce. 

Mental illness or continuous unconsciousness

In more unusual cases, a divorce can be granted on the ground of a spouse’s mental illness or continuous unconsciousness. 

Mental illness

The court can grant a divorce if:

• Your spouse has been admitted to and detained in a mental institution or similar facility under the relevant mental health laws; and
• They have not been discharged for at least two years before you start the divorce; and
• At least two psychiatrists, appointed by the court, confirm that your spouse is mentally ill and there is no reasonable prospect of recovery. 

Continuous unconsciousness

The court can also grant a divorce if:

• Your spouse is unconscious due to a physical condition, and
• They have been unconscious for at least six months continuously. 

These grounds exist for extreme situations where the spouse is permanently inaccessible, and the marriage cannot function. 

What happens when you get divorced? 

Personal consequences 

Once the court grants a divorce:

• Your marital status changes – you are no longer married to each other.
• You are free to marry again in the future, if you wish. 

Patrimonial (financial and property) consequences

What happens to your assets and finances depends on:

• Your marital property regime (how you were married)
• Whether you married before or after 1 November 1984
• Whether the court grants a forfeiture or redistribution order 

Common regimes include:

• In community of property
• Out of community of property with accrual
• Out of community of property without accrual 

If you married after 1 November 1984 with a standard antenuptial contract (ANC) excluding community, the accrual system often applies. In that case, the difference between the accrual (growth) of your estates during the marriage is shared, usually equally, subject to the rules in your ANC and the Act. 

Redistribution orders (mainly for older “out of community” marriages)

Before 1984, many couples married out of community of property without accrual. In those marriages, one spouse could leave the marriage with far less, even after years of contribution.

To soften this, the law allows a court to make a redistribution order in certain cases. This means the court can order one spouse to transfer assets (or a portion of them) to the other to correct serious inequality. 

When can a redistribution order be considered?

Generally, the court looks for:

• A marriage before 1 November 1984, out of community of property, where community of property, profit and loss and accrual were all excluded in the ANC.
• An application for a redistribution as part of the divorce case.
• The spouse against whom the order is sought has more assets than liabilities.
• The spouse asking for redistribution has contributed (directly or indirectly) to the maintenance or growth of the other spouse’s estate during the marriage (for example, by working, running the household, raising children, supporting a business).
• The court is satisfied that making such an order is just and equitable in the circumstances. 

What does the court consider?

When deciding what to transfer, the court considers:

• The current means and obligations of both parties
• Any donations made between spouses during the marriage
• Any forfeiture orders
• Any other factor the court believes is relevant 

Forfeiture of benefits

A forfeiture order allows the court to say that one spouse must forfeit some or all of the benefits they would otherwise receive from the marriage.

Under section 9 of the Divorce Act, the court can grant a forfeiture order when divorcing on the ground of irretrievable breakdown, but only if one spouse would be unduly benefited compared to the other. 

This can include:

• Sharing in a joint estate (in community of property), or
• Sharing in the accrual of the other spouse’s estate, if you married out of community with accrual after 1 November 1984. 

What does the court look at?

When deciding on forfeiture, the court considers:

• How long the marriage lasted
• The circumstances that caused the breakdown of the marriage
• Any serious misconduct by either spouse
• Whether one spouse will receive an undue benefit if forfeiture is not ordered 

If you want forfeiture, you must:

• Specifically claim it in your divorce papers, and
• Set out the facts you rely on. 

You cannot usually seek forfeiture later – it must be dealt with at the time of the divorce. 

Dissolution of marriage on presumption of death

If a spouse goes missing and is presumed dead, the Dissolution of Marriages on Presumption of Death Act allows the High Court, when it grants an order presuming death, also to order that the marriage is dissolved. 

This is a special situation, but it gives certainty to the remaining spouse. 

How to get started if you are thinking of divorce

For a layperson, the legal detail can be overwhelming. In practice, most people start by:

 

1. Getting clarity on their marital regime (how they are married).
2. Listing assets and debts in both names.
3. Thinking through issues like care of children, maintenance, and where each spouse will live.
4. Consulting an attorney to understand:
• Whether the marriage has legally “broken down”
• What a realistic financial outcome might look like
• How to structure a settlement agreement to avoid a long, expensive trial

Clear, early advice can save time, money and emotional strain. 

FAQS

1. What law governs divorce in South Africa?
   Divorce is mainly governed by the Divorce Act of 1979. It sets out when a court can grant a divorce and what it may order about children, property, and finances.
2. What are the legal grounds for divorce in South Africa?
   There are two grounds: irretrievable breakdown of the marriage, or a spouse’s mental illness or continuous unconsciousness in limited, serious cases.
3. What does “irretrievable breakdown of the marriage” mean?
   It means the relationship is over and there’s no real chance of reconciliation, regardless of who is “at fault”.
4. What does a court look at to decide if the marriage has broken down?
   The court considers the overall picture: time living apart, adultery, abuse, ongoing serious conflict, lack of intimacy, or a clear decision by one spouse that the marriage is over.
5. Can I still get divorced if I was the one who committed adultery?
   Yes. The question is whether the marriage has broken down, not who caused it.
6. When can divorce be granted because of mental illness?
   Only in narrow cases where a spouse has been in a mental health institution for at least two years and specialists confirm there’s no reasonable prospect of recovery.
7. When can divorce be granted because a spouse is unconscious?
   If a spouse has been continuously unconscious (for example, after an accident) for at least six months and the condition is ongoing.
8. What happens to my status once we divorce?
   Once the divorce is granted, you are no longer married to each other, and you are free to marry again.
9. Why does my marital property regime matter?

It determines who owns what and how assets and debts are divided. It depends on whether you are married in community of property, out of community with accrual, or out of community without accrual.

10. What is the difference between “in community” and “out of community”?
    In community: everything (assets and debts) is shared and usually split equally. Out of community: each spouse has a separate estate, with or without sharing the growth (accrual) during the marriage.
11. What is the accrual system?

Each spouse keeps their own estate, but the growth of their estates during the marriage is compared and the spouse whose estate grew more usually shares part of that growth.

12. What is a redistribution order?

In certain older out‑of‑community marriages (mainly before 1 November 1984), the court can order one spouse to transfer assets to the other to correct serious financial unfairness.

13. What does the court consider for a redistribution?
    It looks at both spouses’ financial positions, their direct and indirect contributions (including homemaking and childcare), and whether a redistribution would be fair in all the circumstances.
14. What is forfeiture of benefits?

Forfeiture means a spouse must give up some or all of the benefits they would usually receive from the marriage because it would be unfair for them to keep those benefits.

15. When will a court order forfeiture?

When, considering the length of the marriage, the reasons for the breakdown, and any serious misconduct, one spouse would otherwise receive an unfair or “undue” benefit.

16. What is an “undue benefit”?

It is a benefit that is clearly out of proportion and unfair, for example where a very short marriage would otherwise give one spouse a large financial gain.

17. Can I claim forfeiture after the divorce is final?
    No. Forfeiture must be claimed and decided during the divorce proceedings.
18. What if my spouse is missing and presumed dead?
    You can apply to the High Court for an order presuming death. The court can also declare the marriage dissolved so you are no longer legally married.
19. What first steps should I take if I’m considering divorce?
    Confirm how you are married, list your assets and debts, think about arrangements for children and maintenance, and get legal advice on your rights and options.
20. Why speak to a divorce attorney early?

Early advice helps you understand likely outcomes, avoid costly mistakes, and work towards a practical settlement instead of a long, expensive court battle.

 

  

Am I Married Under Customary Law?”

Tsambo v Sengadi shows that you may be legally married under customary law even if some traditional rituals were not performed in the traditional manner.

In Tsambo v Sengadi (244/19) ZASCA 46, the Supreme Court of Appeal (“SCA”) gave important guidance on when a South African customary marriage will be regarded as valid, even if not every traditional ritual was performed in the classic way. The judgment is best known as the “HHP case”, because it concerned the late musician Jabulani “HHP/Jabba” Tsambo and his partner, Lerato Sengadi.

The central dispute was whether a valid customary marriage existed between HHP and Sengadi. His father argued that they were not married because a separate, formal “handing over of the bride” ceremony, with slaughtering of an animal and bile rituals (“go gorosiwa”), had never taken place. At most, he said, the parties had reached lobola agreement and held a celebration – but marriage, in the full customary sense, was still to come. Sengadi, on the other hand, argued that their lobola negotiations, the way she was treated on the day, and their life together afterwards all pointed to a completed customary marriage.

The SCA took a modern, realistic view of customary law. It emphasised that the Recognition of Customary Marriages Act 120 of 1998 requires three things for a post‑Act marriage: both parties over 18, both consenting to be married under customary law, and a marriage that is “negotiated and entered into or celebrated in accordance with customary law”. The Act deliberately does not spell out every ritual, because it defers to living customary law – how a particular community actually practices its customs today, not how they are described in old textbooks or case law.

On the facts, the couple’s story strongly supported a marriage. HHP proposed in Amsterdam; both families agreed to follow African custom; lobola was formally negotiated at Sengadi’s family home; a written agreement was signed; and HHP paid more than the required deposit immediately thereafter. During the celebrations, his aunts dressed Sengadi in what they expressly called her “wedding dress”, matching HHP’s attire, introduced her publicly as his wife and welcomed her into the Tsambo family. His father hugged and congratulated her as his son’s wife. Thereafter, the couple lived together as husband and wife, and she even registered him as her “spouse” on her medical aid.

The father tried to resist this by relying on earlier cases that treated the physical “handing over of the bride” at the groom’s homestead as a decisive requirement for validity. The SCA rejected such a rigid approach. Building on its earlier decision in Mbungela v Mkabi, the court reaffirmed that the handing over is important in many communities, but it is not always a strict, make‑or‑break element. Customary law is dynamic and evolving. In practice, families may abbreviate or adapt rituals due to cost, time pressures, or personal choices, and that flexibility has always existed in customary law.

What the court looked at was the overall picture: did the families and the couple themselves behave in a way that shows they intended and understood a customary marriage to have been concluded? In this case, the answer was yes. The dressing of the bride by the groom’s aunts, her formal introduction and acceptance as a wife, the father’s congratulations, the joint celebration, and subsequent cohabitation all pointed to a completed marriage, not an incomplete lobola process with a marriage still pending.

An important procedural aspect was that the matter came before the High Court on motion (affidavits), and the father argued there were factual disputes requiring oral evidence. The SCA applied the Plascon‑Evans rule and found there was, in truth, no genuine dispute of fact. Sengadi’s version was detailed and supported by affidavits and video; the father responded largely with bare denials, and failed to file confirmatory affidavits from the very people (such as the aunts) who could have supported his account. In such circumstances, courts are entitled to accept the applicant’s version and decide the case on paper.

The SCA upheld the High Court’s core outcome – that a valid customary marriage existed and that Sengadi was HHP’s lawful customary wife – but corrected one overreach. The High Court had gone on to declare the “handing over” custom unconstitutional, even though no one had pleaded or argued that issue. The SCA stressed that courts may not casually strike down customs or laws on their own motion; constitutional issues must be properly raised, necessary to decide, and fully argued by the parties.

For clients and practitioners, the practical messages are clear:

• A customary marriage will not fail just because a particular ritual (such as a formal handover ceremony) did not happen exactly as described in older precedent.
• Courts will look at intention, conduct and community practice: were lobola negotiations concluded, did the families celebrate the union as a marriage, and did the couple live as spouses with family acceptance?
• Registration at Home Affairs is important for record‑keeping, but non‑registration does not automatically invalidate an otherwise valid customary marriage.

In short, if your families and community treated you as married, a court may well agree – with major consequences for inheritance, maintenance, and funeral and decision‑making rights.

 

How to Register Your Overseas Marriage with Home Affairs (South Africans Married Abroad)

 

A client asked: I married a South African who is in America on a visa. How do we legally register our marriage with South Africa now?”

Many South Africans marry abroad and later discover that their marriage is not automatically captured on the South African population register. Here is a practical outline of how to register a U.S. marriage with the Department of Home Affairs while you are still overseas.

In theory – although not always smoothly in practice – you should be able to follow these steps to have your marriage recorded in South Africa:

1. Get a certified copy of your marriage certificate
   Obtain the official marriage certificate issued by the authority in the U.S. state where you got married.
   
   
2. Have the marriage certificate apostilled
   Because both the U.S. and South Africa are parties to the Hague Apostille Convention, the marriage certificate must be apostilled by the relevant U.S. authority (usually the Secretary of State in the state where the marriage took place).
   
   
3. Complete the required Home Affairs form
   Download and complete form BI‑130 (Notification of Marriage) from the South African Department of Home Affairs.
   
   
4. Submit your documents via the South African mission
   Lodge the following with the nearest South African Embassy, High Commission or Consulate in the U.S.:
• Certified copy of your marriage certificate with apostille
• Completed BI‑130 form
• Certified copies of both spouses’ passports
• If you are South African, a certified copy of your SA ID book or smart ID card
• Proof of South African citizenship (if applicable)
• Any additional documents the mission may request
  
  
5. Processing by Home Affairs
   The consulate will send your documents to Home Affairs in South Africa for processing. Once finalised, your marriage should be recorded on the National Population Register.
   
   
6. Follow up regularly
   Stay in contact with the consulate or mission to track progress. Processing times vary and delays are common.

Additional points to keep in mind

• If either spouse was previously married, you will usually need to provide proof that the prior marriage has legally ended (divorce decree or death certificate).
• There is no fee to register the marriage itself, but the mission may charge consular fees for certifying or notarising documents.

In practice, delays, lost documents and inconsistent feedback from Home Affairs are common, so it is wise to keep copies of everything and to follow up politely but persistently.

 

How Do You Contest a Will or Deceased Estate in South Africa?

When someone passes away, what happens to their belongings, money, and property can lead to disputes. This is especially true if family members or heirs feel the will is unfair, invalid, or was influenced improperly. South African law provides clear ways to challenge (contest) a will or the administration of a deceased estate, but the rules are strict to protect the true wishes of the deceased.

When Can You Contest a Will?

You cannot challenge a will simply because you don’t like its contents. South African law allows you to contest a will only under specific circumstances, including:

• Lack of Mental Capacity: If the deceased (the testator) wasn’t of sound mind when signing the will.
• Undue Influence/Coercion: If someone pressured or manipulated the deceased into changing their will.
• Fraud or Forgery: If you suspect the will is fake, includes forged signatures, or was signed under false pretences.
• Failure to Follow Formalities: The will must be in writing, signed by the testator, and signed in front of two competent witnesses. If these rules weren’t followed, it’s invalid.

Who Can Contest?

• Heirs or Beneficiaries: Those named in the will or those who would inherit if there was no will (for example, close family members).
• Interested Parties: People who believe they should have inherited, creditors, or anyone with a direct interest in the estate.

Step-by-Step: How Do You Contest a Will or Estate?

1. Lodge an Objection with the Master of the High Court

• File a written objection explaining why you believe the will or the estate administration is invalid. Attach any evidence you have (medical records, correspondence, proof of undue influence, etc.).

2. Place a Caveat (Hold) on the Estate

• This legal notice tells the Master and executor not to distribute assets until the dispute is settled. It prevents heirs from getting their share before your concern is addressed.

3. Await Review and a Possible Court Referral

• The Master of the High Court reviews your objection. If the matter isn’t resolved, it can be referred to the High Court for a judge to decide.

4. Go to Court (if needed)

• In court, both sides will present their evidence. If the court agrees the will is invalid, an earlier will may be used, or—if none exists—the estate is divided according to the Intestate Succession Act.

What If There’s No Valid Will?

If the will is thrown out or there was never a valid will, the estate is distributed using a fixed formula set by the Intestate Succession Act 81 of 1987. This law automatically prioritises spouses, children, and close family. In a landmark case, the Constitutional Court ruled that old rules excluding some heirs (like women and children under male-only inheritance) were outdated and unconstitutional.

Example Scenario

Imagine your father passes away, and a new will (signed shortly before his death) leaves everything to his new partner, excluding his children. If you believe he wasn’t of sound mind, or was pressured to sign, you can lodge an objection with the Master of the High Court. This can halt the estate’s distribution and may lead to a court hearing. If the court finds the will was invalid, inheritance will either follow a previous will or default to the intestate succession law, ensuring children and spouses are still protected.

In Summary

• Only certain grounds—like mental incapacity, undue influence, and legal technicalities—allow you to contest a will or estate.
• The process starts by lodging an objection with the Master of the High Court.
• The estate’s distribution can be paused until the dispute is resolved.
• If successful, either an earlier will applies, or default inheritance rules are followed.
• Early legal advice is vital to protect your interests.

Need advice?

Let’s chat about your options.

www.bregmans.co.za |☎️011 646 0335 | ✉️info@bregmans.co.za 

Can a Joint Bank Account Be Frozen After Death in South Africa?

 

Here is a straightforward, layman’s explanation of what happens to a joint bank account after one holder dies in South Africa:

Account Gets Frozen After Death
If one of the people on a joint bank account in South Africa dies, the bank will freeze the entire account as soon as they are notified (usually after seeing the death certificate). This means nobody (including the surviving account holder) can draw money or make payments from this account.

Why is the Account Frozen?
South African law does not treat joint accounts in the same way as some other countries. The money in a joint account is not automatically passed on to the survivor. The deceased’s portion becomes part of their estate, which must be sorted out and managed by a court-appointed executor.

No Access Until Estate Is Processed
All direct debits and transactions from the joint account stop. The surviving partner or spouse will need to open a new bank account in their own name. The money in the frozen account will only be released to the survivor once the executor finishes their work, which can take some time.

What Should You Do?
It’s wise to set up separate bank accounts, emergency funds, or life insurance, so that loved ones are not left without access to money immediately after a death. This is especially important to cover day-to-day living and funeral costs.

In Summary:
In South Africa, if you have a joint bank account and your co-account holder dies, the bank will freeze the whole account. You will not be able to get any of the money until the estate is sorted out. Plan ahead so you (and your family) have another way to pay for urgent needs during this time.

The account typically stays frozen for several weeks to a few months, depending on how quickly paperwork is sorted and the court-appointed executor is able to act. Delays are common, so it is wise to plan for this by having other funds available for immediate needs

If you need more details on the legal process or assistance with estate planning, it is recommended to speak to a lawyer or financial advisor familiar with South African law.