Divorce settlements in South Africa work through a written agreement between the parties, recorded in a settlement agreement, that sets out the terms of the divorce. The settlement agreement covers the division of the assets, the maintenance of the children, and the spousal maintenance. The agreement is signed by the parties, and the agreement is made an order of court on the application of either party. The order is enforceable under the Divorce Act, and the parties are bound by the terms.
This page explains how divorce settlements work in South Africa, the procedural steps, and the practical process to follow. If you need help with a divorce settlement, our Sandton-based Family Law team can assist.
What the settlement agreement is
The settlement agreement is a written contract between the parties that records the terms of the divorce. The agreement is signed by the parties, and the agreement is made an order of court on the application of either party.
The agreement is a binding contract, and the parties are bound by the terms. The agreement can be varied on a material change in circumstances, where the variation is just and fair in light of the facts of the matter.
What the settlement covers
The settlement covers the terms of the divorce, including the division of the assets, the maintenance of the children, and the spousal maintenance. The list below gives the categories that are most commonly covered, in the order they usually appear in practice.
- The division of the assets, including the matrimonial home, the bank accounts, the investments, and the other assets.
- The maintenance of the children, including the monthly amount, the day of the month, and the payment method.
- The spousal maintenance, including the monthly amount, the duration, and the conditions.
- The custody and care of the children, including the children’s primary care and contact arrangements.
How the settlement is negotiated
The settlement is negotiated by the parties themselves, or with the help of a mediator or an attorney. The parties can settle the matter at any time, and the agreement is recorded in the settlement agreement.
The most common steps in the negotiation are listed below in the order they usually appear in practice.
- The parties meet to discuss the terms of the divorce, including the division of the assets, the maintenance of the children, and the spousal maintenance.
- The parties engage a mediator or an attorney to help with the negotiation where the parties cannot agree.
- The parties agree on the terms of the divorce, and the agreement is recorded in the settlement agreement.
- The parties sign the settlement agreement, and the agreement is filed with the court.
How the settlement is made an order
The settlement agreement is made an order of court on the application of either party. The application is filed at the High Court or the regional magistrate’s court, depending on the nature of the matter. The clerk of the court will check the agreement, and the agreement is incorporated into the decree of divorce.
The agreement is enforceable under the Divorce Act, and the parties are bound by the terms. The agreement can be enforced through the court, and the court has the same powers of enforcement as it has for any other order.
What happens after the settlement
After the settlement is made an order, the parties are bound by the terms. The order is recorded in the court file, and the parties are free to remarry. The order is also registered with the Department of Home Affairs, and the parties’ marital status is updated.
The order can be varied on a material change in circumstances, where the variation is just and fair in light of the facts of the matter. The most common reasons for a variation are listed below in the order they usually appear in practice.
- A change in income, including a job loss or a promotion.
- A change in the children’s needs, including a new school or a medical condition.
- A change in the parties’ other obligations, including a new child or a new marriage.
Common Mistakes to Avoid
These are the patterns that leave parties with the wrong outcome.
- Skipping the settlement agreement. The settlement agreement is the document that records the parties’ agreement on the terms of the divorce.
- Skipping the supporting documents. The court will not record the agreement without the supporting documents.
- Skipping the negotiation. The negotiation is the process by which the parties agree on the terms of the divorce.
- Letting the dispute escalate. The right path is to engage with the other party and apply for variation where appropriate.
- Quitting the process before the agreement is signed. The divorce is not final until the agreement is signed.
Frequently Asked Questions
How do divorce settlements work in South Africa?
Divorce settlements in South Africa work through a written agreement between the parties, recorded in a settlement agreement, that sets out the terms of the divorce. The settlement agreement covers the division of the assets, the maintenance of the children, and the spousal maintenance. The agreement is signed by the parties, and the agreement is made an order of court on the application of either party.
What is a settlement agreement in divorce?
The settlement agreement is a written contract between the parties that records the terms of the divorce. The agreement is signed by the parties, and the agreement is made an order of court on the application of either party.
What is included in a divorce settlement?
The settlement covers the division of the assets, the maintenance of the children, and the spousal maintenance. The agreement also covers the custody and care of the children, including the children’s primary care and contact arrangements.
Can a divorce settlement be changed?
Yes. The settlement can be varied on a material change in circumstances, where the variation is just and fair in light of the facts of the matter. The most common reasons for a variation are a change in income, a change in the children’s needs, or a change in the parties’ other obligations.
Can a divorce settlement be enforced?
Yes. The settlement agreement is enforceable under the Divorce Act, and the parties can apply to the court for an order enforcing the agreement. The court has the same powers of enforcement as it has for any other order.
Do I need a lawyer for a divorce settlement?
A lawyer is not required for an uncontested settlement, but it is strongly recommended for a contested settlement. The settlement is a complex legal document, and the parties should seek legal advice to ensure that their interests are protected.
How long does a divorce settlement take?
A divorce settlement can take anywhere from a few weeks to a few months, depending on the complexity of the matter and the willingness of the parties to negotiate. The settlement is usually quicker than a contested hearing, and the parties can settle the matter at any time.
Get help with your divorce settlement. If you need help with a divorce settlement, Otrebski Attorneys’ Family Law team in Sandton can assist. As a 100% women-led firm with a 5-star Google rating, we focus on compassionate, practical legal solutions for families.
Disclaimer. This article provides general information about how divorce settlements work in South Africa. It is not legal advice and does not replace consultation with a qualified family attorney. The relevant law is set out in the Divorce Act 70 of 1979, which may be amended. Confirm the current position with the Department of Justice and Constitutional Development or speak to a family attorney before relying on anything in this article.