Divorce procedures in South Africa are governed by the Divorce Act 70 of 1979 and the Uniform Rules of Court. The process is designed to end a marriage lawfully, settle the patrimonial and parental consequences, and give the parties legal certainty before they remarry. Although the steps follow a set sequence, the timeline and complexity depend heavily on whether the matter is contested.
Only a court with divorce jurisdiction can grant a decree of divorce. In practice that means a Division of the High Court or a Regional Magistrate’s Court (the regional Family Court). This page sets out, in plain South African English, how the procedure works from the day a summons is issued to the day the decree is granted.
Grounds for divorce under the Divorce Act 70 of 1979
The Divorce Act 70 of 1979 sets out three recognised grounds. The court will grant a decree where one of these grounds is proved on a balance of probabilities.
- Irretrievable breakdown of the marriage, which is by far the most common ground and is dealt with in section 4 of the Act.
- Mental illness of the other spouse, as defined in section 5, where the spouse has been under care and treatment for a continuous period and there is no prospect of recovery.
- Continuous unconsciousness of the other spouse, dealt with in section 6, where the spouse has been in a continuous unconscious state with no prospect of recovery.
An irretrievable breakdown can be shown where the spouses have not lived together as husband and wife for a continuous period, where one spouse has committed adultery and the other finds it irreconcilable, or where the court is satisfied that the marriage has in fact broken down beyond repair. The court will not force a couple to stay married where the relationship has genuinely ended.
Jurisdiction and where to issue the summons
Divorce jurisdiction is based on domicile or ordinary residence. Either spouse must be domiciled in, or ordinarily resident in, South Africa on the date the action is instituted. Within South Africa, the summons is issued in the court area where the defendant (the spouse being divorced) is domiciled or ordinarily resident, or where the parties last lived together as husband and wife.
A divorce can be heard in either the High Court or the Regional Magistrate’s Court (Family Court). The Regional Court has full jurisdiction over divorce, custody, maintenance and the division of assets, and most divorces are now enrolled there because the rolls are lighter and the costs lower.
Uncontested vs contested divorce procedures
The single biggest variable in any divorce procedure is whether the matter is contested. That decision shapes the cost, the timeline and the steps that follow.
- Uncontested divorce: the spouses have signed a full settlement agreement dealing with patrimonial issues, maintenance, and any children. The matter is set down on the uncontested roll and usually finalised in a single short hearing.
- Contested divorce: the spouses cannot agree on one or more issues, so the matter is defended and proceeds through pleadings, discovery, pre-trial conferences and ultimately a trial.
- Default divorce: the defendant has been properly served but fails to oppose or appear, and the plaintiff proceeds to trial on an unopposed basis.
The divorce summons and service
The procedure begins when the plaintiff’s attorney issues a combined summons at court. The summons sets out the relief sought, including the grounds for divorce, the proposed division of assets, any claim for spousal maintenance, and the arrangements for any minor children.
Where there are minor children, the summons must be accompanied by a statement setting out the proposed arrangements for care, contact and maintenance. The sheriff of the court then serves the summons personally on the defendant. The defendant has ten court days to enter an appearance to defend if he or she intends to oppose the action.
The role of the Family Advocate
Where minor children are involved, the Family Advocate plays a central role in the procedure. The Family Advocate is a state-funded office attached to the Department of Justice and Constitutional Development, tasked with protecting the best interests of children caught up in divorce litigation.
Before the court will grant a decree involving children, the parties must usually obtain an enquiry report or a certificate from the Family Advocate confirming that the proposed care, contact and maintenance arrangements are in the best interests of the child. The Family Advocate can also be asked to draft a parenting plan.
The settlement agreement and enrolment
In an uncontested matter the parties sign a written settlement agreement, often called a deed of settlement, which records every term of the divorce. This includes the division of the joint estate or accrual, the transfer of immovable property, the division of pension interest, any spousal maintenance, and the arrangements for the children.
Once signed, the agreement is made an order of court and the matter is set down on the uncontested roll. In a contested matter, the parties may still settle at any stage, and the court will encourage settlement through mediation or a pre-trial conference under Rule 37 of the Uniform Rules of Court.
The decree of divorce and section 14
The final step in the procedure is the granting of a decree of divorce by the presiding officer. Once granted, the marriage is dissolved and the parties regain the capacity to remarry. The settlement terms, where applicable, become an order of court and are enforceable through the usual mechanisms.
Section 14 of the Divorce Act allows a court to refuse to grant a decree if it is not satisfied that the marriage has irretrievably broken down.
How long the procedure takes
Timeline is one of the most common practical questions. The answer depends almost entirely on whether the matter is contested and on the court roll.
- Uncontested divorce: typically finalised within two to six months of the summons being issued, often sooner in the smaller regional courts.
- Contested divorce: typically six months to two years or longer, depending on the complexity, the number of issues in dispute, and the trial date allocated by the court.
- Default divorce: usually finalised on a similar timeline to an uncontested matter, once non-opposition has been confirmed.
Frequently Asked Questions
What are the grounds for divorce in South Africa?
The Divorce Act 70 of 1979 recognises three grounds: irretrievable breakdown of the marriage (section 4), mental illness of the other spouse (section 5), and continuous unconsciousness of the other spouse (section 6). Irretrievable breakdown is by far the most commonly relied-on ground.
Which court deals with divorce in South Africa?
A divorce is heard in either a Division of the High Court or a Regional Magistrate’s Court (the regional Family Court). The Regional Court has full jurisdiction over divorce, custody, maintenance and the division of assets, and most divorces are enrolled there.
What is the difference between a contested and uncontested divorce?
In an uncontested divorce the spouses have signed a full settlement agreement and the matter is finalised in a single short hearing. In a contested divorce the spouses cannot agree on one or more issues, so the matter is defended and proceeds through pleadings, discovery, pre-trial conferences and ultimately a trial.
How is a divorce summons served in South Africa?
Once the plaintiff’s attorney issues the combined summons at court, the sheriff of the court serves it personally on the defendant. The defendant then has ten court days to enter an appearance to defend if he or she intends to oppose the action.
What is the role of the Family Advocate in a divorce?
Where minor children are involved, the Family Advocate protects the best interests of the children. Before the court grants a decree involving children, the parties usually need an enquiry report or a certificate from the Family Advocate confirming that the proposed care, contact and maintenance arrangements are in the best interests of the child.
How long does a divorce take in South Africa?
An uncontested divorce is typically finalised within two to six months of the summons being issued. A contested divorce typically takes six months to two years or longer, depending on the complexity of the issues and the court roll.
Can a divorce be refused by the court?
Yes. Under section 14 of the Divorce Act, a court can refuse to grant a decree if it is not satisfied that the marriage has irretrievably broken down. The court must be satisfied on the evidence that there is no reasonable prospect of the parties reconciling.
Get help with your divorce. Understanding the procedure is the first step; acting on it is the next. Otrebski Attorneys’ Family Law department in Sandton advises clients on every stage of a divorce, from summons to decree, with the firm’s 100% women-led, Level 4 B-BBEE team and a 5-star Google rating.
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