Types of Family Law

Family law is the branch of South African law that governs relationships between spouses, parents, children, and domestic partners. It shapes how marriages are formed, how they are dissolved, and how the people inside them are protected when things go wrong. Because it touches almost every household at some point, it is one of the areas of law that clients most often need help understanding.

The field is not a single body of rules. It draws on the Constitution, the Divorce Act 70 of 1979, the Children’s Act 38 of 2005, the Maintenance Act 99 of 1998, the Domestic Violence Act 116 of 1998, and the Recognition of Customary Marriages Act 120 of 1998, among others. Each statute governs a different type of family law issue, and each has its own procedures and forums.

This guide sets out the most common types of family law that family lawyers in South Africa deal with day to day, so you can recognise which area your matter falls under and what help to ask for.

Marriage and Matrimonial Property Law

The starting point of most family law work is the marriage itself, and in particular the matrimonial property regime that the spouses chose, or that applied by default. In South Africa, a civil marriage is automatically in community of property unless an antenuptial contract is signed before the wedding.

The three main regimes are:

• In community of property, where the spouses share one joint estate and each is liable for the other’s debts.
• Out of community of property without the accrual system, where each spouse keeps a separate estate.
• Out of community of property with the accrual system, where each spouse keeps a separate estate during the marriage but shares the growth in their estates at divorce or death.

Family lawyers advise on antenuptial contracts before marriage, on changing a regime during the marriage through a court application under section 21 of the Matrimonial Property Act 88 of 1984, and on what the chosen regime means for the division of assets later.

Divorce and the Division of Assets

Divorce is governed by the Divorce Act 70 of 1979 and is one of the busiest areas of family law practice. A divorce can be uncontested, where the spouses agree on the terms, or contested, where the court must decide on the division of assets, maintenance, and the arrangements for any children.

Section 7 of the Divorce Act allows a court to order forfeiture of patrimonial benefits where one spouse would otherwise be unduly benefited in a way that would be inequitable. Section 8 deals with the redistribution of assets in marriages out of community of property without accrual. Family lawyers handle the summons, settlement agreements, and the trial itself, and they also draft the divorce documentation that governs the parties for years afterwards.

Child Law, Care and Contact

Matters involving children are governed primarily by the Children’s Act 38 of 2005, read with section 28 of the Constitution. The Children’s Act replaced the older language of “custody” and “access” with the concepts of care, contact, and guardianship, all of which are defined in terms of the responsibilities and rights that parents hold.

The guiding principle, set out in section 9 of the Children’s Act, is the best interests of the child. Family lawyers help parents with:

• Parenting plans drafted under section 33 and made orders of court.
• Care and contact disputes, including relocation applications.
• Guardianship, including the consent required for a child to marry, travel, or be removed from South Africa.
• Family Advocate enquiries, where the Office of the Family Advocate investigates and reports on what arrangement will best serve the child.

Maintenance for Children and Spouses

Maintenance is governed by the Maintenance Act 99 of 1998 and is dealt with in the Maintenance Courts. The duty to maintain a child rests on both parents, in proportion to their means, and continues regardless of the parents’ relationship status.

Spousal maintenance, by contrast, is dealt with under the Divorce Act and is not automatic. Section 7(2) lists the factors a court weighs, including the length of the marriage, the parties’ respective means, their ages, and whether one spouse gave up a career to raise a family. Family lawyers handle applications for maintenance, complaints against defaulters, and the variation of existing orders when circumstances change.

Domestic Violence and Protection Orders

The Domestic Violence Act 116 of 1998 gives victims of abuse a fast, accessible route to legal protection. Any person in a domestic relationship, including spouses, partners, children, and people who share a home, may apply for a protection order at the nearest Magistrate’s Court.

A protection order can prohibit the respondent from committing further abuse, from entering the shared home, from contacting the complainant, and from possessing a firearm. Family lawyers assist applicants with the affidavit, the interim protection order, the return date, and the final order, and they also help respondents who wish to oppose or vary an order.

Adoption and Surrogacy

Adoption is regulated by chapter 15 of the Children’s Act and is handled by accredited adoption social workers and the Children’s Court. A family lawyer guides adoptive parents through the screening process, the consent of the biological parents, and the final adoption order, which permanently transfers parental rights and responsibilities.

Surrogacy is regulated by chapter 19 of the Children’s Act and requires a written surrogate motherhood agreement that must be confirmed by the High Court before any fertility treatment begins. Both areas are highly technical, and the penalties for non-compliance are severe, which is why they form a specialised area of family law practice.

Customary and Religious Marriages

Customary marriages are recognised by the Recognition of Customary Marriages Act 120 of 1998, which gives them the same legal status as civil marriages, provided they are registered. A customary marriage is presumptively in community of property unless an antenuptial contract is concluded.

Religious marriages, including Muslim and Hindu marriages, have historically had limited recognition in South African civil law. Draft legislation continues to be debated, and the position is best confirmed with the Department of Home Affairs or a family attorney. Family lawyers advise couples on registering their marriage, on the consequences of their chosen regime, and on the steps needed to dissolve the marriage lawfully.

How a Family Lawyer Helps Across These Areas

Few family law matters fall neatly into a single box. A divorce often triggers a maintenance enquiry, a care and contact dispute, and an application for a protection order at the same time. A family lawyer’s role is to coordinate the legal strategy across all of these, ensuring that one step does not undermine another.

The Family Law department at Otrebski Attorneys handles matters across every area described above, from a single office in Sandton. We are a 100% women-led firm with a Level 4 B-BBEE rating and a 5-star Google rating across 12 reviews, and Director Nastasja Otrebski leads the department.

Frequently Asked Questions

What are the main types of family law in South Africa?

The main types of family law in South Africa are marriage and matrimonial property law, divorce and the division of assets, child law covering care and contact under the Children’s Act 38 of 2005, maintenance under the Maintenance Act 99 of 1998, domestic violence and protection orders under the Domestic Violence Act 116 of 1998, adoption and surrogacy, and customary and religious marriages under the Recognition of Customary Marriages Act 120 of 1998.

Which act governs divorce in South Africa?

Divorce is governed by the Divorce Act 70 of 1979. It sets out the grounds for divorce, the factors a court considers when dividing assets and awarding maintenance, and the procedures for both contested and uncontested divorces.

What is the difference between care and contact?

Under the Children’s Act 38 of 2005, care refers to the right and responsibility to provide a child with a suitable home, supervision, and day-to-day welfare. Contact refers to the right of a parent or other person to maintain a personal relationship with the child, including visits and communication. The older terms “custody” and “access” are no longer used.

Is a customary marriage legally recognised in South Africa?

Yes. The Recognition of Customary Marriages Act 120 of 1998 recognises customary marriages that comply with the requirements of the Act, including registration with the Department of Home Affairs. A customary marriage is presumptively in community of property unless an antenuptial contract is concluded.

When should I see a family lawyer?

It is wise to see a family lawyer before signing any agreement, before or shortly after marriage for an antenuptial contract, at the start of a separation, and before applying for or opposing a protection order. Early advice is almost always cheaper than the cost of undoing a mistake made without it.

Get help with a family law matter. Whether you are entering a marriage, going through a divorce, or dealing with a dispute about children, the Family Law team at Otrebski Attorneys can guide you across every area described above, from our single office in Sandton. We are a 100% women-led firm with a 5-star Google rating across 12 reviews and a Level 4 B-BBEE rating, and Director Nastasja Otrebski leads the Family Law department.

Disclaimer. This article is general information about the types of family law in South Africa and is not legal advice. Family law outcomes turn on the specific facts of each matter and on the current law, which includes the Divorce Act 70 of 1979, the Children’s Act 38 of 2005, the Maintenance Act 99 of 1998, the Domestic Violence Act 116 of 1998, and the Recognition of Customary Marriages Act 120 of 1998, all of which may be amended. Confirm the current position with the Department of Justice and Constitutional Development, the Department of Home Affairs, or a qualified family attorney before acting on anything set out here.