Understanding the grounds for divorce in South Africa

Unlike the United States, South Africa’s divorce system is essentially no-fault, nor does it require couples to live apart for a set period. It is a more pragmatic approach to divorce that ensures individuals are not trapped in marriages that have clearly broken down, says Cor Van Deventer, Director at law firm VDM Incorporated in Sandton.

Divorce in South Africa is granted on three grounds, he explains, with the most common being the irretrievable breakdown of the marriage. Mental illness and continuous unconsciousness also play a part.

“Uncontested divorces, where both parties agree, carry legal costs ranging from R8,000 to R20,000 and generally take between six and 12 weeks to finalise. Contested divorces, on the other hand, can stretch on for months - even years – and can incur legal fees sometimes running up to hundreds of thousands of rands. And then there are the high net worth divorces which can cost millions and take years to finalise,” Van Deventer explains.

Among the country’s most notable and public divorce cases in terms of settlements was that of businessman Bill and Edith Venter in 1994. “While not a protracted divorce, she was awarded R12 million, which even today is a significant amount of money,” says Van Deventer.

He explains that dissolving a marriage in South Africa, whether civil, customary, religious or a civil union, is done via court order, and “crucially, even if one spouse proves irretrievable breakdown, and the other opposes it, the court will grant the divorce”.

In addressing grounds for divorce, Van Deventer says the court will consider a marriage to be irretrievably broken where spouses have lived apart for a continuous period of at least one year, if there’s no prospect of reconciliation.

Regarding instances of adultery, loss of trust and criminal convictions and imprisonment, he says: “While adultery alone is not a legal ground for divorce, it may serve as evidence of the breakdown of the marriage if the wronged spouse believes that reconciliation is impossible”.

If a spouse has been convicted of multiple crimes and/or is serving a prison sentence, the court may also deem the marriage unsustainable.

“A divorce may be granted on the grounds of mental illness if the defendant has been institutionalised for treatment or detained as a mentally ill prisoner. The court will require testimony from two psychiatrists, one appointed by the court, and proof that the defendant has no reasonable prospect of recovery".

Van Deventer further explains that if a spouse has been in an uninterrupted state of unconsciousness for at least six months, the court may approve a divorce on these grounds. “In cases like these, medical evidence to confirm the person’s condition and prognosis will be required from two practitioners, one of whom must be a court-appointed neurologist or neurosurgeon.”

The quickest, most cost-effective, and usually least stressful option is an uncontested divorce, where the spouses cooperate to reach an agreement on critical matters such as asset division, maintenance, childcare, and visitation rights. “In this process, a single impartial attorney can draft a legally binding settlement agreement, which both spouses need to sign before it is made an order of the court. Because there is no need for prolonged legal battles, an uncontested divorce can be finalised in weeks".

Van Deventer calls a mediated divorce a viable middle-ground option. “It’s a structured negotiation process, necessary when spouses struggle to reach a mutual agreement but want to avoid the lengthy and costly litigation process. In these cases, a professional mediator—often appointed by an attorney—helps facilitate discussions and negotiations to resolve disputes amicably.”

Once an agreement is reached, the attorney drafts the final settlement agreement, which is signed and submitted to the court for approval and takes about three months to conclude.

The lengthiest and most expensive route is the contested divorce. “Contested divorces are the result of spouses being unable to agree on key issues such as child custody, financial support, or asset division. In some cases, there are also emotional conflicts which prevent one or both parties from settling, leading to prolonged and very expensive legal battles".

In contested divorces, both parties are required to appear in court multiple times, with the final divorce terms being decided by a judge. It’s a process that can take several years, incur substantial legal fees, and cause significant emotional strain on all involved, including any children. Because of the financial and emotional toll, contested divorces should be avoided whenever possible, Van Deventer advises.

The way assets are divided depends on whether the couple was married in community of property, out of community of property with accrual, or out of community of property without accrual. “Couples may disagree on how to divide houses, cars, businesses, investments, and even hidden assets, which are typical of high-conflict divorces.”

A spouse may claim spousal maintenance if they were financially dependent during the marriage, with the court taking into consideration factors such as financial need, earning capacity, and contributions made during the union. Van Deventer explains that alimony disputes often arise when one party refuses to pay or believes the amount requested is unreasonable.

One of the major sources of conflict in a divorce is determining child custody and related expenses, and these issues often end up in protracted legal battles. Child maintenance is determined based on the financial means of both parents, but disputes can arise if one party under-reports their income, Van Deventer explains. “Some parents may refuse to pay or fail to keep up with maintenance payments, which can lead to legal action".

Van Deventer notes that if there has been a history of domestic violence, harassment, or abuse in a marriage, one spouse may seek a protection order against the other. “Courts take allegations of abuse seriously, particularly when children are involved".

Pension Fund and Retirement Benefits are also often contentious issues. “If a couple was married in community of property or with accrual, one spouse may be legally entitled to a portion of the other’s pension or retirement savings. Aside from not wanting to pay their soon-to-be ex their share, arguments can arise from payout delays. What people don’t always understand is that the division of pension funds often requires approval from pension administrators, which can cause delays".

Ultimately, while the legal framework for divorce in South Africa aims to provide clarity and fairness, the process is deeply personal and often challenging. “Whether uncontested, contested, or mediated, each one carries its own complexities and legal weight. It’s therefore very important to understand your rights, seek professional guidance, and prioritise the wellbeing of all involved, especially the children,” he advises.

zelda.venter@inl.co.za