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Family Law

Divorce in South Africa

South African divorce is no-fault: a court grants a decree if the marriage has irretrievably broken down (Divorce Act 70 of 1979). How assets are divided depends on your marital regime — in community of property, out of community with accrual, or out of community without accrual. Divorces can be unopposed (often finalised in weeks) or opposed (which can take years).

Key facts

  • The only common ground is irretrievable breakdown — no need to prove fault.
  • Married in community of property: the joint estate is generally split 50/50.
  • The Regional Magistrates' Courts and High Courts both hear divorces.
  • A settlement agreement can regulate assets, maintenance and parenting, and is made an order of court.
  • The interests of minor children are paramount; a Family Advocate endorsement is required where children are involved.

The law that applies

  • Divorce Act 70 of 1979 — ss 3–7, 9
  • Matrimonial Property Act 88 of 1984 — ss 2–8 (accrual system)
  • Children's Act 38 of 2005 — ss 18–35 (parental responsibilities and rights)

Leading cases

EB v ER NO (Constitutional Court) [2023] ZACC 32

Extended the redistribution remedy of s 7(3) of the Divorce Act to marriages out of community concluded after 1984, pending legislative reform.

Practical steps

  1. Determine your marital regime (check your antenuptial contract, if any).
  2. Attempt to agree a settlement covering assets, maintenance and children.
  3. Issue and serve a divorce summons through the sheriff.
  4. If unopposed, set the matter down; if opposed, follow the litigation process.

Frequently asked questions

How long does a divorce take in South Africa?

An unopposed divorce with a signed settlement can be finalised in 4–8 weeks. An opposed divorce involving disputes over assets or children commonly takes 1–3 years.

Do I need my spouse's consent to divorce?

No. If the court is satisfied the marriage has irretrievably broken down, it can grant a divorce even if the other spouse opposes it.

How does this apply to your situation?

Ask LexiSA. It will gather your facts, apply the law above, and give you a cited assessment of your position — free.

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This guide is legal information, not legal advice, and may not reflect amendments after its last review. For advice on your specific circumstances, consult a practising attorney.