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.