DBM explains the truth about separation and divorce in South Africa
South African law does not recognise legal separation; marriage ends only through divorce or death of a spouse.
Question:
My husband and I were married for two years when we decided to separate. Is it possible for us to enter into a legal separation agreement instead of pursuing a divorce?
DBM’s Sibisiswe Khathi answers:
No, South Africa does not recognise legal separation agreements as means to terminate a marriage.
A marriage in South Africa can only be dissolved in one or two ways namely: through divorce proceedings or upon death of a spouse.
Even if spouses no longer live together, the legal consequences of marriage remain, including property rights, division of assets, and spousal maintenance obligations, until the divorce is finalised.
In South Africa, the duration of the marriage plays a significant role, particularly regarding forfeiture of patrimonial benefits during divorce proceedings, as outlined in section 9(10 of the Divorce Act 70 of 1979.
In the matter of KT v MR (1) SA 97 (GP), the court noted that the marriage lasted only 20 months, classifying it as a short marriage.
Additionally, the court considered that most of the estate was established by the husband before he married his wife.
As a result, the court ordered a partial forfeiture in favour of the wife.
If you are unsure about your legal status, it is always best to seek expert legal advice.
A family attorney can assist with the understanding your rights and obligations.
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