Divorce Act 70 of 1979 Explained

The Divorce Act 70 of 1979 is the principal statute that governs how marriages are dissolved in South Africa. Before it came into force on 1 July 1979, spouses had to rely on fault-based grounds such as adultery, cruelty, or desertion, often turning every divorce into a public morality test. The Act replaced that system with a single, modern enquiry: has the marriage broken down beyond repair?

Understanding the Act matters because it sets out who can bring a divorce, the only ground a court will accept, the protection given to children, and the way assets and maintenance are decided. This guide walks through each operative section in plain South African English so you can approach your matter informed, whether you intend to oppose it or simply want a fair, uncontested settlement.

At Otrebski Attorneys, our Family Law department in Sandton advises clients on every aspect of the Act, from the founding grounds in section 3 through to forfeiture under section 8. The explainer below is a starting point, not a substitute for advice on your own facts.

The Sole Ground: Irretrievable Breakdown Under Section 4

Section 3 of the Act abolishes the old fault-based grounds and provides that a marriage may be dissolved by decree of divorce only on the ground of its irretrievable breakdown. Two further grounds, mental illness and continuous unconsciousness, are dealt with separately in section 5, but in practice almost every divorce in South Africa proceeds under section 4. Cost factors in South Africa divorce can significantly impact the financial well-being of the parties involved. Legal fees, property division, and child support obligations are some of the primary considerations that can complicate the process. Understanding these cost factors is crucial for individuals seeking to navigate their divorce effectively.

Section 4(1) directs a court to grant a decree of divorce if it is satisfied that the marriage has reached the point where there is no reasonable prospect of the restoration of a normal marriage. The court is not obliged to grant the decree automatically; it must be positively satisfied that the relationship is genuinely beyond repair.

Section 4(2) lists the factors from which a court may infer irretrievable breakdown:

• the parties have not lived together as husband and wife for a continuous period that, in the court’s opinion, indicates a final breakdown;
• the defendant has committed adultery and the plaintiff finds it irreconcilable with continuing the marriage;
• the defendant has been declared an habitual criminal; or
• the parties have lived apart for a continuous period of at least one year immediately before the date on which the action is instituted.

Importantly, the court may refuse the decree if it believes there is still a reasonable prospect of reconciliation, and it may at any stage postpone the proceedings to allow the parties an opportunity to attempt reconciliation.

Section 5: Mental Illness or Continuous Unconsciousness

Section 5 provides an alternative, fault-free ground. A court may grant a divorce where the defendant has been admitted to an institution as a mentally ill patient in terms of the relevant mental health legislation, or is in a state of continuous unconsciousness, and the relevant specialist evidence establishes that there is no reasonable prospect of recovery. Because the ground relies on medical proof, these matters are usually supported by formal reports from treating psychiatrists or neurologists.

Section 6: Children and the Family Advocate

Section 6 builds in a hard safeguard for minor children. A court will not grant a divorce decree dealing with care, contact, or guardianship unless it is satisfied that the arrangements made for the children are consistent with their best interests, as also required by section 7 of the Children’s Act 38 of 2005 and section 9 of the Constitution.

To assist the court, section 6 allows the matter to be referred to the Family Advocate, an independent state official who investigates the circumstances of the child and files a report. The Family Advocate’s inquiry typically covers:

• where and with whom the child should primarily live;
• the contact schedule for the non-resident parent;
• schooling, medical, and religious arrangements; and
• any risk of harm or exposure to conflict between the parents.

In practice the Family Advocate’s recommendations carry significant weight, and contested care and contact disputes rarely proceed to trial without that report being obtained.

Section 7: Division of Assets and Spousal Maintenance

Section 7 governs the financial consequences of divorce. It works hand in hand with the Matrimonial Property Act 88 of 1984, which fixes whether the parties are married in community of property, out of community with the accrual system, or out of community without accrual. The Act does not rewrite your marital regime; instead, it allows for marital regime adjustments by granting the court a limited power to adjust it on divorce.

Section 7(1) lists the orders a divorce court can make, including dividing the joint estate (in community marriages), ordering transfer of assets, and ordering the payment of spousal maintenance.

Section 7(2) sets out the factors the court must weigh when deciding spousal maintenance, namely:

• the existing or prospective means and earning capacity of each party;
• their respective financial needs and obligations;
• their ages and the duration of the marriage;
• any physical or mental disability;
• the standard of living of the parties before the breakdown;
• any factor the court considers relevant, including conduct that would be inequitable to disregard; and
• any compensation or damages awarded to a spouse for the loss of a right to claim maintenance following the dissolution of the marriage.

Section 7(3) deals with the so-called redistribution order. In a marriage that was entered into before 1 November 1984 out of community of property (that is, before the Matrimonial Property Act introduced the accrual system), the court may, on application, transfer assets from one spouse to the other where the applicant made a direct or indirect contribution to the other spouse’s estate. Indirect contribution expressly includes the rendering of services, the saving of costs, and the contribution made by the applicant to the welfare of the family, including the household and the care of children. This remedy closes a gap that would otherwise leave pre-1988 out-of-community spouses without relief.

Section 8: Forfeiture of Patrimonial Benefits

Section 8 gives the court a discretion to order that one spouse forfeits, in whole or in part, the patrimonial benefits of the marriage. An order is made only if the court is satisfied, having regard to the duration of the marriage, the circumstances that gave rise to the breakdown, and any substantial misconduct on the part of the spouse against whom the order is sought, that the forfeiture would be just and equitable.

Forfeiture is not automatic and is not a punishment for moral failing. The court weighs whether allowing the spouse to retain the benefit would, in the particular circumstances, be unjust to the other spouse. In short marriages, in matters involving concealed assets, or where one party’s conduct caused substantial financial prejudice, forfeiture may be the appropriate remedy.

Jurisdiction: Where Can You Bring the Divorce?

Section 2 of the Act sets out the rules that decide which division of the High Court (or a Regional Court with family-law jurisdiction) may hear the matter. A divorce action may be instituted in a court that has jurisdiction where:

• the plaintiff or defendant is ordinarily resident; or
• both parties last lived together as spouses within the area of that court.

Where the defendant’s whereabouts are unknown or the parties live in different provinces, careful choice of forum at the outset can save significant cost and delay.

How the Matrimonial Property Act 88 of 1984 Fits In

The Divorce Act works alongside the Matrimonial Property Act 88 of 1984. The Matrimonial Property Act sets the default marital property regime and regulates the accrual system, while the Divorce Act provides the mechanism for ending the marriage and the discretionary powers to adjust rights on divorce in accordance with marital property laws. If you are unsure which regime applies to your marriage, your antenuptial contract (or the absence of one) is the starting point, and a Family Law attorney can confirm your position from the deed office records. Divorce laws in South Africa can be complex and vary depending on specific circumstances. It is crucial to seek professional legal advice to navigate these laws effectively. Understanding the implications of divorce laws can help individuals make informed decisions during a challenging time.

Frequently Asked Questions

What is the only ground for divorce under the Divorce Act 70 of 1979?
Section 3 of the Act provides that a marriage may be dissolved only on the ground of its irretrievable breakdown. Section 4 elaborates that a court must be satisfied there is no reasonable prospect of restoring a normal marriage, and lists factors such as a continuous separation of at least one year from which breakdown may be inferred.

What does section 7(3) of the Divorce Act allow?
Section 7(3) allows a court to make a redistribution order transferring assets between spouses in a marriage that was entered into before 1 November 1984 out of community of property, where the applicant made a direct or indirect contribution to the other spouse’s estate, including through household services or the care of children.

Does the court have to consider the children in a divorce?
Yes. Section 6 requires the court to be satisfied that the arrangements for minor children are consistent with their best interests before granting a decree. The court may refer care, contact, and guardianship disputes to the Family Advocate for investigation and a report.

What is forfeiture of patrimonial benefits under section 8?
Section 8 lets a court order that one spouse forfeits, in whole or in part, the patrimonial benefits of the marriage where that would be just and equitable, having regard to the duration of the marriage, the circumstances leading to the breakdown, and any substantial misconduct by the spouse against whom the order is sought.

How long does an uncontested divorce take under the Divorce Act?
An uncontested divorce, where the parties have settled the care of children, maintenance, and division of assets in a signed settlement agreement, is often enrolled and finalised within a few months of summons being issued. Contested matters depend on the issues in dispute and the trial roll of the relevant court.

Get Help With Your Divorce

Otrebski Attorneys is a 100% women-led, Level 4 B-BBEE Sandton firm with a dedicated Family Law department and a 5-star rating across 12 reviews. Director Nastasja Otrebski and our team translate the technical language of the Divorce Act 70 of 1979 into clear, practical advice for your circumstances.

Disclaimer. This article is intended for general information only and does not constitute legal advice. You should consult a qualified attorney about the specific facts of your matter before acting on anything set out here.