Divorce in South Africa: What Happens First?

Maybe you have been unhappy for a long time, or maybe your partner has just said the word "divorce" and your world has tilted. Either way, it is normal to feel lost about where to begin. Most people have no idea what the first steps are until they need them, and it helps to know the road ahead.

What is happening

In South Africa, divorce is governed mainly by the Divorce Act 70 of 1979. A court grants a divorce, not a church, a family meeting or a signed letter. The usual ground is that the marriage has "irretrievably broken down", meaning there is no reasonable chance of the two of you getting back together. You do not have to prove who is to blame. Things like living apart for a while, adultery or a finding that you no longer love each other can all be evidence of breakdown.

Before anything goes to court, the most important question is what kind of marriage you have. A civil marriage is either in community of property (one joint estate, the default if you signed nothing before the wedding) or out of community of property with an antenuptial contract, with or without the accrual system. This choice, made years ago, largely decides how property and debts are split. The rules come from the Matrimonial Property Act 88 of 1984. Customary marriages are also real marriages in law and can only be ended by a court, even if lobola was returned or the families agree. Religious marriages have their own rules, and the position for Muslim marriages has changed through the courts in recent years, so get advice for your situation.

A divorce starts when one spouse issues a summons at the regional court or the high court and has it served on the other spouse by the sheriff. If you agree on everything, your agreement is written up in a settlement agreement and made an order of court. If there are children under 18, the Office of the Family Advocate may look at the arrangements to make sure they are in the children's best interests.

Is this you?

• You are thinking about divorce but do not know what to do first
• Your spouse has said they want a divorce, or you have received papers
• You are not sure if you are married in or out of community of property
• You were married under customary law or in a religious ceremony and are unsure what applies
• You are worried about money, the house or the children once you separate
• You feel pressure from family on both sides and need clear facts

30-second self-check

Answer yes or no to each question.

• Do you know which marital regime applies to your marriage?
• Do you have copies of your marriage certificate and any antenuptial contract?
• Do you know roughly what you and your spouse own and owe?
• Do you have your own bank account and access to some money?
• Have you thought about where the children will live, if you have children?
• Do you feel safe at home right now?
• Have you spoken to an attorney, a mediator or Legal Aid SA yet?

0-1 yes: You are at the very beginning. That is fine. Start with documents and safety, and do not sign anything yet.
2-3 yes: You have some pieces in place. A first consultation will help you fill in the gaps.
4 or more yes: You are well prepared for a first meeting with an attorney or mediator.

What you can do next

• Today: If you do not feel safe, put safety first (see our article on feeling unsafe at home). Otherwise, find your marriage certificate and any antenuptial contract, and keep copies somewhere private.
• This week: List what you own and owe: house, car, pension funds, savings, store accounts, loans. Get recent bank statements if you can.
• This month: Book a first consultation with a family law attorney, a family mediator or Legal Aid SA. Ask about your marital regime, likely costs and whether mediation could work for you.
• Do not move money out of joint accounts or hide assets. Courts take a dim view of this and it can cost you later.
• Do not sign a settlement agreement you do not understand, even if you are told it is "standard".
• Look after yourself. Divorce is one of the most stressful life events, and it helps to talk to someone.

Your tool

Divorce Readiness Checklist - a short private checklist that shows what documents, information and support you already have, and what to gather before you see a professional.

When to get professional help

Get legal help early if there are children, a house, a business, pension funds or significant debt, or if your spouse already has an attorney. Get help urgently if you have been served with a summons, because there are short deadlines to respond. If the stress is affecting your sleep, work or mood, a counsellor can support you through the process.

Who can help: family law attorney, accredited family mediator, Legal Aid SA, counsellor or psychologist

Getting help in South Africa

Legal Aid SA (legal-aid.co.za) helps people who qualify under its means test with family matters. University law clinics and community advice offices often give free first advice. The Office of the Family Advocate, part of the Department of Justice (justice.gov.za), can help with arrangements for children. You can check that an attorney is properly admitted with the Legal Practice Council (lpc.org.za). Your employer's Cleared Mind Careline, 0800 212 146, can connect you to counselling while you go through this.