What Is a Divorce Order?

A divorce order, also called a decree of divorce, is the order of court that ends a marriage in South Africa. The order is granted by the High Court or the regional magistrate’s court, depending on the nature of the divorce. Nofault divorce laws in South Africa provide a more streamlined process for couples seeking to end their marriage without assigning blame. This legislative framework reflects a growing understanding of the complexities of modern relationships, prioritizing emotional well-being. As such, it encourages parties to settle their affairs amicably, reducing the emotional and financial strain often associated with divorce proceedings. The order is the final step in the divorce process, and it sets out the terms of the divorce, including the division of the assets, the maintenance of the children, and the spousal maintenance.

This page explains what a divorce order is, what it includes, and the practical steps to obtain one. If you need help with a divorce matter, our Sandton-based Family Law team can assist.

What a divorce order is

A divorce order is the order of court that ends a marriage in South Africa. The order is granted by the High Court or the regional magistrate’s court, depending on the nature of the divorce. The order is the final step in the divorce process, and it sets out the terms of the divorce.

The order is a public document, and it is recorded in the court file. The order is also registered with the Department of Home Affairs, and the parties’ marital status is updated to reflect the divorce.

What the order includes

The order sets out 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 items that typically appear in a divorce order.

• The division of the assets, including the matrimonial home, the pension interest, and the other assets.
• The allocation of the liabilities, including the bond, the vehicle finance, and the credit card balances.
• 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.

Types of divorce orders

There are two main types of divorce orders in South Africa. The first is the decree of divorce, which is the order that ends the marriage. The second is the settlement agreement, which is the agreement that records the parties’ agreement on the terms of the divorce.

The decree of divorce is granted by the court, and the settlement agreement is signed by the parties and made an order of court. The two are usually granted together, and the settlement agreement is incorporated into the decree of divorce.

How to obtain a divorce order

The divorce order is obtained by applying to the court for the decree of divorce. The application is made at the High Court or the regional magistrate’s court, depending on the nature of the divorce. The application is filed with the clerk of the court, and the matter is set down for hearing.

The court will consider the application, and if satisfied that the parties have agreed to the terms of the divorce, will grant the decree of divorce. The decree of divorce is then registered with the Department of Home Affairs, and the parties’ marital status is updated.

When the order takes effect

The order takes effect on the date the court grants the decree of divorce. The parties are free to remarry from the date of the decree, and the obligations under the settlement agreement continue to apply.

The order is final when granted, and the parties cannot appeal the order on a question of fact. The order can be appealed on a question of law, but the appeal has to be lodged within a reasonable time of the decree of divorce.

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.
• Failing to register the decree of divorce. The decree of divorce must be registered with the Department of Home Affairs to update the parties’ marital status.
• Skipping the tax implications. The transfer of an asset can trigger capital gains tax, and the parties should seek tax advice.
• 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 order is granted. The divorce is not final until the decree is granted.

Frequently Asked Questions

What is a divorce order in South Africa?

A divorce order, also called a decree of divorce, is the order of court that ends a marriage in South Africa. The order is granted by the High Court or the regional magistrate’s court, depending on the nature of the divorce.

What does a divorce order include?

The order sets out the terms of the divorce, including the division of the assets, the maintenance of the children, and the spousal maintenance. The order also sets out the custody and care of the children, including the children’s primary care and contact arrangements.

What is the difference between a divorce order and a settlement agreement?

The divorce order is the order that ends the marriage. The settlement agreement is the agreement that records the parties’ agreement on the terms of the divorce. The two are usually granted together, and the settlement agreement is incorporated into the decree of divorce.

When does a divorce order take effect in South Africa?

The order takes effect on the date the court grants the decree of divorce. The parties are free to remarry from the date of the decree, and the obligations under the settlement agreement continue to apply.

Can a divorce order be appealed in South Africa?

The order can be appealed on a question of law, but the appeal has to be lodged within a reasonable time of the decree of divorce. The order is final when granted, and the parties cannot appeal the order on a question of fact.

How long does it take to get a divorce order in South Africa?

An uncontested divorce usually takes two to six months from the date of the summons. A contested divorce can take six months to more than a year, depending on the complexity of the matter and the court’s roll.

Do I need a lawyer to get a divorce order in South Africa?

A lawyer is not required for an uncontested divorce, but it is strongly recommended. The divorce is a complex legal process, and the parties should seek legal advice to ensure that their interests are protected.

Get help with your divorce. If you need help with a divorce, 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 divorce orders 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. Understanding divorce laws in South Africa can be complex, and it’s essential to stay informed about the latest changes. Many individuals may benefit from utilizing resources such as online legal platforms and local community workshops. Additionally, seeking advice from professionals who specialize in family law can provide clarity and guidance tailored to individual circumstances.