In a South African contested divorce, each spouse is generally responsible for paying their own legal costs as the matter progresses. There is no automatic rule that the spouse who issued the summons, or the spouse said to have caused the marriage to break down, must carry both sets of legal fees.
How the final bill is split is decided by the court at the end of the case. A judge has a wide discretion over costs under the Divorce Act 70 of 1979, read with the Uniform Rules of Court, and that discretion is exercised on the facts of each matter. The court can order one party to contribute to the other’s costs, order each party to bear their own costs, or, in serious cases, make a punitive costs order against a spouse who has litigated in bad faith.
Because contested divorces run for many months and involve attorneys, advocates, and expert witnesses, the question of who ultimately pays is one of the most important strategic issues in the case. This guide sets out the general rule, the court’s discretion, contribution applications under Rule 43, and why contested divorces cost more than uncontested ones.
The General Rule: Each Party Pays Its Own Costs
The practical starting point in a South African contested divorce is that each spouse pays their own attorney as the case goes along. Your attorney will require a financial retainer to cover consultations, drafting of pleadings, correspondence, and preparation for trial. Your spouse does the same with their own legal team. Divorce financial implications in South Africa can vary significantly depending on various factors, including the assets owned and the income of each spouse. It is essential to consider how expenses will be divided and whether spousal maintenance may be required. Understanding the financial implications early on can help both parties make informed decisions throughout the divorce process.
These parallel fee arrangements stay in place until the divorce is finalised. Only once the trial concludes, or the matter settles, does the question of a costs order between the parties get determined. This is why budgeting for a contested divorce from the outset is so important.
The Court’s Discretion Over Costs
Once the contested divorce is heard, the court has a discretion to make a costs order. That discretion is informed by the general principle, drawn from civil procedure, that costs should follow the event. In plain terms, the unsuccessful party is usually ordered to contribute towards the successful party’s costs. But family litigation rarely produces a single clear winner, so the court weighs a number of factors before deciding where the burden should fall.
The factors a court will weigh include:
- The financial means of each spouse, including earning capacity, assets, and liabilities.
- The conduct of the parties during the litigation, including whether a spouse made reasonable settlement offers or unreasonably prolonged the case.
- Whether a spouse acted in bad faith, for example by hiding assets, ignoring discovery, or refusing to engage with genuine settlement proposals.
- The degree of success on each issue, since a party may win on some issues and lose on others.
- Whether one spouse was forced to litigate in order to protect minor children or to secure a fair division of the joint estate.
In a large number of contested matters the court ultimately makes no order as to costs, which means each party remains responsible for their own legal fees. This is often the outcome where both spouses have conducted the litigation reasonably and the issues were genuinely in dispute.
Cost Orders Follow the Event, Subject to Tariffs
Where the court does order one spouse to pay the other’s costs, the recovery is almost never dollar-for-rand. South African procedure distinguishes between two main billing scales, and the difference has a real impact on what the successful party actually recovers.
- Party-and-party costs. This is the default scale. It covers only the legal work reasonably necessary to prosecute or defend the action, taxed according to the statutory court tariff. Because the tariff is markedly lower than a private attorney’s commercial hourly rate, a party-and-party order often recovers only a portion of the actual fees charged.
- Attorney-and-client costs. This is a punitive scale that the court reserves for cases where a spouse has behaved egregiously, for example by litigating fraudulently, deliberately destroying evidence, or forcing wholly unnecessary proceedings. It allows for recovery substantially closer to the actual fees on the attorney’s bill.
The practical point is that even a favourable costs order will rarely cover the full legal bill. Clients should plan their litigation budget on the basis that they will carry most of their own costs themselves.
Rule 43: An Interim Contribution to Legal Costs
One of the real risks in a contested divorce is that a wealthier spouse uses superior financial resources to outspend a financially dependent spouse, forcing an unfair settlement. South African law guards against this through Rule 43 of the Uniform Rules of Court, which provides a fast, inexpensive mechanism for interim relief while the main divorce is pending.
A financially vulnerable spouse can bring a Rule 43 application asking the court to order the other spouse to make an interim contribution towards their legal costs. The application is decided on a limited set of papers, usually without oral evidence, and is designed to level the playing field so that both parties have access to proper legal representation. Similar interim relief is available in the Regional Court under the rules made under the Magistrates’ Courts Act 32 of 1944.
When considering a Rule 43 contribution application, the court will typically look at:
- The applicant’s financial position, including income, reasonable needs, and access to capital.
- The respondent’s financial means and ability to pay.
- The complexity of the dispute and the likely cost of properly ventilating it.
- Whether the applicant has made out a bona fide case that cannot be prosecuted without assistance.
A Rule 43 contribution is only an interim measure. The final costs position is still determined at the end of the divorce, and any contribution paid in the interim may be taken into account when the court frames its final costs order.
Why a Contested Divorce Costs More Than an Uncontested One
A contested divorce is almost always more expensive than an uncontested one because it requires the court to resolve issues the spouses could not agree on themselves. Each disputed issue generates its own pleadings, evidence, and argument, and the costs scale roughly with how many issues are in dispute and how long they take to resolve.
- Pleadings and disclosure. Disputed claims require detailed particulars, discovery of documents, and often requests for further particulars, all of which take attorney time.
- Expert evidence. Disputes over the value of a business, a pension interest, or a spouse’s earning capacity usually require forensic accountants or actuaries, whose fees are substantial.
- Advocates. Contested trials are normally run with advocates on brief, adding a second layer of professional fees.
- Trial days. Each day in court carries preparation time, attendance fees, and the opportunity cost of the matter not settling sooner.
- Interim applications. Rule 43 applications, discovery disputes, and other interlocutory applications all add to the total bill.
By contrast, an uncontested divorce turns on a single, agreed settlement agreement and usually requires only one short court appearance. The difference in cost is one of the reasons clients are often advised to attempt settlement first.
Frequently Asked Questions
Who pays for a contested divorce in South Africa?
As a general rule, each spouse pays their own legal costs as the contested divorce proceeds. At the end of the case the court has a discretion to make a costs order, which may require one spouse to contribute to the other’s costs, may leave each party to bear their own costs, or, in serious cases, may impose a punitive costs order on a spouse who litigated in bad faith.
Does the losing spouse pay the winning spouse’s legal fees in a South African divorce?
Not automatically. The general civil principle that costs follow the event applies, but the divorce court exercises a wide discretion under the Divorce Act 70 of 1979 and the Uniform Rules of Court. Even where a costs order is made in your favour, it is taxed on the party-and-party tariff, which typically recovers only a portion of your actual attorney’s bill.
What is a Rule 43 contribution to legal costs?
Rule 43 of the Uniform Rules of Court allows a financially vulnerable spouse to apply, early in the divorce, for an interim order requiring the other spouse to make a contribution towards their legal costs. The application is decided quickly on written papers and is intended to ensure that both spouses have access to proper legal representation while the main divorce is pending.
What is the difference between party-and-party and attorney-and-client costs in a divorce?
Party-and-party costs are the default court tariff and cover only the legal work reasonably necessary for the case, usually recovering a portion of the actual fees charged. Attorney-and-client costs are a punitive scale reserved for serious misconduct, such as fraud or bad-faith litigation, and allow recovery much closer to the attorney’s actual billed fees.
Why does a contested divorce cost more than an uncontested divorce in South Africa?
A contested divorce requires the court to resolve disputed issues through pleadings, discovery, expert evidence, advocates, and trial days. Each disputed issue adds professional fees. An uncontested divorce, by contrast, turns on a single agreed settlement agreement and usually requires only one short court appearance, which is why it is markedly cheaper.
Can the court order each spouse to pay their own costs in a contested divorce?
Yes. In many contested divorces the court makes no order as to costs, which means each party remains responsible for their own legal fees. This is common where both spouses have conducted the litigation reasonably and the issues were genuinely in dispute.
Can I recover all of my attorney’s fees through a costs order?
Usually not. Even where the court orders the other spouse to pay your costs, the order is taxed on the party-and-party tariff, which is markedly lower than most attorneys’ commercial hourly rate. Full recovery on an attorney-and-client scale is reserved for cases involving serious misconduct, such as fraud or bad-faith litigation.
Get help with your contested divorce. The Family Law team at Otrebski Attorneys in Sandton advises on contested divorces, Rule 43 contribution applications, and cost orders across South Africa. As a 100% women-led firm with a 5-star Google rating, a Level 4 B-BBEE rating, and Director Nastasja Otrebski at the helm, we focus on clear, practical strategy and transparent fee management. Contact our Sandton office to discuss your matter.
Disclaimer. This article provides general information about who pays for a contested divorce in South Africa. It is not legal advice and does not create an attorney-client relationship. The relevant law is set out in the Divorce Act 70 of 1979, the Uniform Rules of Court (including Rule 43), and the rules made under the Magistrates’ Courts Act 32 of 1944, all of which may be amended. Confirm the current position with a qualified family attorney before relying on anything in this article. Divorce settlement options in South Africa can vary significantly based on the circumstances of each case. It is essential to explore various arrangements, such as dividing assets or settling on spousal maintenance. Seeking professional advice can help individuals make informed decisions regarding their specific situations.