Divorce is one of the most stressful legal processes a person can go through. It affects your home, your finances, your children and often your business. Understanding how the process works, and what the law actually says about dividing assets, helps you make better decisions at a time when emotions run high.
This guide explains the main steps in a South African divorce and the legal issues that most often decide the outcome.
The grounds for divorce
Under the Divorce Act 70 of 1979, a court may grant a divorce on one of two grounds:
- irretrievable breakdown of the marriage (section 4), meaning the relationship has broken down to the point that there is no reasonable prospect of restoring a normal marital relationship; or
- mental illness or continuous unconsciousness of one spouse (section 5), in the limited circumstances the Act sets out.
Almost all divorces proceed on irretrievable breakdown. South Africa has a “no-fault” system. A court does not need to decide who caused the breakdown before granting a divorce, although conduct can still be relevant to issues such as forfeiture of benefits and maintenance.
Uncontested and contested divorces
Uncontested divorce. Where the spouses agree on everything, including division of assets, maintenance and arrangements for children, they sign a settlement agreement. The divorce is then heard on the unopposed roll, and the settlement agreement is made an order of court. This is the quickest and least expensive route, and can often be finalised within a few months.
Contested divorce. Where the spouses cannot agree, the matter proceeds as a defended action:
- The plaintiff issues a summons setting out the relief claimed.
- The defendant delivers a notice of intention to defend, a plea and often a counterclaim.
- The parties exchange documents (discovery) and financial information.
- The parties must consider mediation. Uniform Rule 41A requires each party to state whether they agree to refer the dispute to mediation.
- If the matter does not settle, it proceeds to pre-trial conferences and eventually trial.
Contested divorces can take years and be very expensive. Most settle before trial, often after a mediation or a settlement conference. Where urgent interim arrangements are needed while the divorce is pending, such as maintenance, a contribution to legal costs or care of the children, a Rule 43 application may be brought. See our guide on Rule 43 applications.
Your marital property regime matters most
How assets are divided depends mainly on how you were married.
Married in community of property
If you married without an antenuptial contract (ANC), you are generally married in community of property. The spouses share a single joint estate, including assets and debts, and each spouse is entitled to half of the net joint estate on divorce, subject to any forfeiture order.
Married out of community of property with the accrual system
If your ANC applies the accrual system under the Matrimonial Property Act 88 of 1984, each spouse keeps a separate estate. On divorce, the growth in each estate during the marriage is compared. The spouse whose estate grew less has a claim for half of the difference. Assets excluded in the ANC, inheritances and donations are generally not taken into account. The commencement values declared in the ANC are important, so check them early.
Married out of community of property without accrual
Historically, spouses who excluded accrual kept everything in their own names, and there was little scope for sharing on divorce for marriages concluded after 1 November 1984. That has changed significantly:
- In EB v ER; KG v Minister of Home Affairs [2023] ZACC 32, the Constitutional Court held that section 7(3) of the Divorce Act was unconstitutional to the extent that it limited redistribution orders to marriages concluded before 1984. Pending Parliament’s correction, the Court read the date limitation out of the section. A spouse married out of community without accrual can now ask the court to order a transfer of assets where it is just and equitable, taking into account contributions to the other spouse’s estate, including non-financial contributions such as caring for the home and children.
- On 9 October 2026, in GD v Minister of Home Affairs [2026] ZACC 39, the Court declared section 7(7)(c) unconstitutional. Pension interests can now be taken into account in these redistribution claims. See our article on the 2026 pension ruling.
Customary and religious marriages
Customary marriages are recognised under the Recognition of Customary Marriages Act 120 of 1998. Following Women’s Legal Centre Trust v President (2022), the Divorce Amendment Act 1 of 2024 extended protections in the Divorce Act to Muslim marriages. The rules on property regimes for these marriages have their own complexities, and advice should be obtained early.
Pensions
A spouse’s pension interest in a retirement fund is treated as part of their assets for the purposes of division on divorce (section 7(7) of the Divorce Act). The divorce order must specifically deal with the pension interest, naming the fund and the percentage or amount payable to the non-member spouse, so that the fund can pay it out under section 7(8). A vague settlement agreement can leave the non-member spouse without a remedy, so drafting matters.
Forfeiture of benefits
Under section 9 of the Divorce Act, a court may order that one spouse forfeit the patrimonial benefits of the marriage (for example, their share of the other spouse’s assets) if it would otherwise be unduly benefited. The court considers the duration of the marriage, the circumstances that led to the breakdown and any substantial misconduct. Forfeiture is an exceptional remedy and must be specifically claimed and proved.
Spousal maintenance
There is no automatic right to spousal maintenance after divorce. A court may order maintenance under section 7(2) of the Divorce Act, considering each spouse’s means and earning capacity, their age, the duration of the marriage, their standard of living, their conduct, and any redistribution order. Courts increasingly favour rehabilitative maintenance for a limited period, but lifelong maintenance can still be ordered where a spouse cannot realistically become self-supporting.
Children
A court will not grant a divorce until it is satisfied that the arrangements for minor or dependent children are in their best interests (section 6 of the Divorce Act). In practice:
- parents are encouraged to agree a parenting plan covering residence, contact, schooling, holidays and decision-making;
- the Office of the Family Advocate may investigate and make recommendations, particularly where arrangements are disputed; and
- child maintenance is a duty on both parents, in proportion to their means.
See our guide on care and contact arrangements.
Practical tips
- Get advice before you move out or move money. Steps taken early can affect interim maintenance, care arrangements and claims for forfeiture.
- Gather financial documents. Bank statements, tax returns, pension statements, company and trust records and the ANC will all be needed.
- Consider mediation. It is usually faster, less expensive and less damaging to co-parenting relationships.
- Look after the children’s interests. Courts take a dim view of parents who use children as leverage.
- Think about trusts and companies. Assets held in trusts or companies may still be relevant to the divorce in some circumstances.
How O’Reilly Law can help
We advise and represent clients in uncontested and contested divorces, Rule 43 applications, redistribution and accrual claims, pension division, and disputes about children. We aim to resolve matters efficiently and, where possible, without trial. Contact us to discuss your situation in confidence.
Related reading: Rule 43 applications · Care and contact under the Children’s Act
This article is general information and not legal advice. Every divorce turns on its own facts. Correct as at October 2026.