Divorce in South Africa hits 10-year high as legal myths persist

In South Africa, divorce is the only legal way to end a marriage, whether civil, customary or a civil union.

According to Benoni City Times, the country follows a no-fault system.

“One of the biggest misconceptions we see is that people think they have to prove adultery or bad behaviour to be granted a divorce,” says Ann-Suhet Marx, the director and head of litigation at VDM Incorporated.

Marx adds that the court only looks at whether the marriage has broken down beyond repair.

According to recent data, divorce rates have reached a 10-year high.

Marx warns that many couples, especially those with children, need better access to clear legal guidance.

Types of divorce

There are three ways to get divorced:

Uncontested divorce

• Fastest and most affordable option where both parties agree on finances, property and children.
• One impartial attorney is appointed to draft a settlement agreement.
• Once both parties sign the agreement and it is made an order of court, the divorce can usually be finalised within a few weeks.

Mediation

• A middle-ground option where a mediator helps resolve disputes when spouses are struggling to reach an agreement but want to avoid a drawn-out court process.
• Once agreement is reached, attorneys prepare the final settlement agreement, which is submitted to court.
• Mediated divorces typically take around three months.

Contested divorce

• When couples cannot agree, the matter goes to court and a judge will ultimately decide the terms of the divorce.
• This is costly, lengthy and emotionally draining, especially for the children if the spouses have any.

“Because of the cost and emotional toll, contested divorces should be a last resort,” urges Marx.

Key legal facts

• There is no legal status of ‘separation’ in South Africa; you are married or divorced.
• Living apart does not end a marriage.
• A separation agreement can regulate arrangements, but does not dissolve the marriage.
• Couples may enter into a separation agreement, which sets out financial, property and parenting arrangements while they live apart.
• While legally binding, a separation agreement does not end the marriage.

Grounds for divorce

Irretrievable breakdown of the marriage

When the relationship has broken down to the point where there is no reasonable chance of reconciliation.

Living apart for at least one year

When spouses have lived apart for an extended period, and there is no prospect of restoring the relationship, the court may find that the marriage has broken down irretrievably.

Adultery

Adultery on its own is not a legal ground for divorce. However, it may be used as evidence that the marriage has broken down if the affected spouse believes reconciliation is no longer possible.

Criminal conviction or imprisonment

Where one spouse has been convicted of multiple crimes or is serving a prison sentence, the court may find that the marriage cannot continue.

Mental illness or continuous unconsciousness

When the defendant has been institutionalised, detained as a mentally ill prisoner or has been unconscious for more than six months, supported by medical evidence from two psychiatrists and proof that recovery is unlikely, a divorce can be filed.

Common disputes

Divorce often involves disputes that are legal, financial and emotional. The complexity of these issues depends on the circumstances of the marriage and whether the divorce is uncontested, mediated or contested.

Common causes of disputes include:

Division of assets and property

Marital regime (married in community of property, out of community of property with accrual, or without accrual) determines how assets will be distributed.

Spousal maintenance

A spouse may claim maintenance if they were financially dependent during the marriage.

Child custody and care arrangements

Issues such as where children will live, contact arrangements, and decision-making around education and healthcare.

Child maintenance payments and protection orders

Where there is a history of abuse, harassment or violence, a protection order may be sought. Courts treat these matters very seriously, especially where children are involved.

Pension and retirement benefits

“Divorce remains a complex process with long-term emotional and financial effects, making proper legal advice essential,” Marx concludes.

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