divorce procedures

Grounds for a divorce in South Africadivorce procedures

Dissolution of marriage and grounds of divorce.

A South African marriage may be dissolved by a court by a decree of divorce and the only grounds on which such a decree may be granted in terms of the Divorce Act are:

a) the irretrievable break-down of the marriage as contemplated in section 4;
b) the mental illness or the continuous unconsciousness, as contemplated in section 5, of a party to the marriage.





Irretrievable break-down of marriage as ground of divorce

Irretrievable break-down of marriage as ground of divorce

A court may grant a decree of divorce on the ground of the irretrievable break-down of a marriage if it is satisfied that the marriage relationship between the parties to the marriage has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between them.

It is not sufficient to simply state that your marriage has broken down irretrievably – you would need to provide the motivating factors / reasons that the marriage has irretrievably broken down:
1. Lack of meaningful communication;
2. Counselling has failed;
3. Intimacy has terminated;
4. There have been incidents of domestic violence
5. Constant arguments;
6. Other spouse has vacated common home and refuses to return;
7. Spouse has commenced an inappropriate relationship which Plaintiff finds unacceptable for the continuation of a normal marriage relationship.

Section 4 (2) of the Divorce Act lays down three circumstances which a Court may accept as evidence of irretrievable breakdown of a marriage and these are that:-
a) the parties have not lived together as husband and wife for a continuous period of at least one year immediately prior to the date of the institution of the divorce action.
b) the Defendant has committed adultery and that the Plaintiff finds it irreconcilable with a continued marriage relationship
c) the Defendant has in terms of a sentence of a Court been declared a habitual criminal and is undergoing imprisonment as a result of such sentence.

In terms of section 4(3) of the Divorce Act the Court has discretion to refuse to grant a divorce order and can insist that the matter is postponed or even dismiss the Plaintiff’s action for divorce if the Court is of the view that there is a reasonable possibility that the parties may become reconciled through marriage counselling, treatment or reflection.

The Summons also must contains the averment that further marriage counselling and/or treatment will not result in a reconciliation. This evidence must be led at Court even in unopposed / uncontested divorces. The Court must be satisfied that the marriage has in fact irretrievably broken down and that there is no prospect of the continuation of a normal marriage, before a final divorce order will be granted. The parties must also show the Court that they have made every effort to save their marriage and that their attempts at counselling have failed or that one of the parties refuses to go for marriage counselling.

Where the parties live together again after the issue of Summons, it does not automatically terminate the divorce proceedings.

If the reconciliation after a few months is seemingly unsuccessful, they can proceed on the same Summons. Where a divorce action which is not defended is postponed in order to afford the parties an opportunity to attempt reconciliation, the court may insist that the action be started again from scratch, on the date of resumption thereof, by any other magistrate/ judge of the court concerned in terms of section 4(4) of the Divorce Act.

A customary marriage may be dissolved only on account of an irretrievable breakdown in the marriage and only if the High, Family or Divorce Court is satisfied that the marriage relationship between the parties has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between them.

Dissolving a Marriage in Terms of African Customary Law

Dissolving a Marriage in Terms of African Customary Law

Customary marriages are similar to civil marriages in that the court must issue the divorce order and the divorce will only be granted if there are grounds for divorce (that is irretrievable breakdown, mental illness or continuous unconsciousness).
The parties can decide the terms of the divorce and then the judge will issue the relevant orders regarding custody and maintenance. If the court has to decide on these matters it will take into account any arrangements that may have been made in terms of customary law.
The wife's family may have to return all or part of the lobola to the husband's family, unless the husband publicly rejected his wife for no reason at all.

Reference: Western Cape Government

Dissolving a Marriage in Terms of the Muslim and Hindu Religions

Dissolving a Marriage in Terms of the Muslim and Hindu Religions

If a man and woman were married by an imam in the Muslim religion or a priest in the Hindu religion, they are not married in terms of the civil law. These are not considered valid marriages. They can then divorce without going to court but they must follow the rules of their religion.

There are a number of issues that need to be addressed in a divorce, including:

Primary care of the children
Contact with the children
Dividing up property



Before the court will issue a divorce, it has to be decided who will look after the children. The parents normally reach an agreement or the court can decide. In the event of a dispute as to primary residence of the children, the Family Advocate can help investigate which parent is in the best position to look after the children and will represent the children in the court if necessary.


The Family Advocate facilitates and assists the parties to reach an agreement on disputed issues, namely primary residence of the children, access and guardianship. If the parties are unable to reach an agreement, the Family Advocate evaluates the parties’ circumstances in light of the best interests of the child and makes a recommendation to the Court with regard to primary residence, access or guardianship.


Upon application by the parties, the Family Advocate institutes an inquiry during which the Family Advocate, assisted by a Family Counsellor (a trained social worker), interviews the parties to ascertain their personal circumstances and the background details to their matter. The Family Advocate then interviews the children to allow them the opportunity to be heard. This prevents the child from having to appear in Court.


• The Family Advocate cannot become involved in any matter that has already been finalized by the Court.
• The Family Advocate cannot be subpoenaed to Court as a witness to give evidence on behalf of any party even if his/ her recommendation is in favour of that party.
• The recommendation of the Family Advocate is intended to assist the Court in adjudicating a matter and arriving at a particular order. The recommendation itself is not enforceable unless incorporated in a Court Order.
• The Family Advocate is a neutral institution and cannot act as the legal representative for either litigant, in a matter.


• If the parties reach agreement on disputed issues the matter does not proceed to trial. This reduces costs and time.
• The Office of the Family Advocate affords the child an opportunity to be heard with regard to his/ her position in the parties’ pending divorce.
• The Family Advocate is a neutral, independent and objective person who focuses solely on the best interests of the child.
• The atmosphere at the Office of the Family Advocate is informal and child friendly.
• The Family Advocate uses techniques of alternate dispute resolution.
• The Family Advocate may work in liaison with other professionals (example social workers, psychologists, psychiatrists, therapists), in assisting the family and to ascertain what is in the best interests of the child.


You may approach the Family Advocate when you have a divorce pending in Court, and have minor or dependent children whose subsequent primary residence, guardianship or access arrangements are in dispute. There are other circumstances under which the Family Advocate may be consulted. These include any application for the variation of a custody, guardianship or access order, an application for the definition of access, a custody, access or guardianship dispute arising from the dissolution of a customary marriage, an application by an unwed father for primary residence, access or guardianship to his minor child or any other matter involving minor or dependent children, where the Court has specifically ordered the Family Advocate to intervene.


The services of the Family Advocate are rendered to the public free of charge. The Family Advocate is a legal officer employed by the Department of Justice.

If the divorce is taking a long time (for example if the parties don't agree) then an interim care and contact order can be issued setting out who will look after the children while the divorce is being finalised. This is done by way of an application to Court in terms of Rule 43 of Rule 58 ( depending on which divorce court is being used)



The parent who is not the primary carer is entitled to contact with their children. There therefore needs to be an agreement about when, where and how this parent will have contact with the children. If it is not in the best interests of the children, then the court can restrict contact or allow contact under supervision, eg: complaints that the father is a drug user / alcohol abuser / sex offendor.



When a couple gets divorced, one party is often in a better financial position than the other. The person who is primary carer of the children will also have expenses that the other parent does not have. The court will issue a maintenance order requiring maintenance to be paid for the children and, depending on the circumstances, to the other party-spousal maintenance.

Maintenance for the children is paid to the parent who has care of the child. Both parents have a duty to support their children. Maintenance will be payable to the other parent until the child becomes a major at the age of 18.

After divorce, all maintenance issues are dealt with in the Maintenance Court found at your local Magistrates Court. Whether one party will have to pay maintenance or support to the other party depends on the circumstances. If the parties cannot agree on how much should be paid then the court will decide.

Because Hindu or Muslim marriages are not fully recognised as legal marriages, the wife has no legal status to claim support for herself after divorce but the duty of support for the children by both parents remains.

The South African Divorce Process

A divorce action is instituted by the issuing of a summons. You can divorce in either the Regional Court of the Magistrate Court having jurisdiction in your area or in the High Court.

The first step in the divorce process is that you need to serve a Summons. A divorce summons must be served personally on the defendant by the sheriff of the court.

In a divorce action a court has jurisdiction if one or both parties are:

• domiciled in the area of jurisdiction of the court on the date on which the action is instituted; or
• ordinarily resident in the area of jurisdiction of the court on the said date and has/have been ordinarily resident in South Africa for a period of not less than one year immediately prior to that date.

There are two types of divorces, the contested or opposed divorce and the uncontested or unopposed. An uncontested divorce is where the parties are able to achieve an agreement which would be documented in a Deed of Settlement. This is the most cost effective option for all parties concerned. An unopposed divorce can be finalized in as little as 6 weeks. If a divorce is opposed it may take between 1 - 2 years, but the majority of opposed divorces settle before they go on trial.

The Opposed Divorce Process

The opposed/contested divorce process consists of various stages:

• pleadings
• application for and set down of trial date
• discovery of documents
• further discovery and particulars
• pre-trial conference
• trial
• judgment

What are Pleadings?

The formal documents in a divorce are referred to as pleadings. Typically, the pleadings in a divorce will consist of the following documents:
• summons, particulars of claim and notice of defence
• plea
• counterclaim
• plea to counterclaim and further pleadings


A divorce is commenced by the issue of a summons.

The summons tells the defendant that if he/she disputes the plaintiff's claim and wishes to defend the action, he/she must serve a notice of appearance to defend the claim on the plaintiff or his/her attorney within 10 days (where the parties live in the same jurisdiction) or 21 days (where the parties live in different provinces) after the date of service of the summons upon him/her. The summons also warns the defendant of the consequences if he/she fails to do so, i.e. it may be possible to obtain judgment by default against him/her.


After serving a notice of intention to defend, the defendant must, within 20 court days, deliver a plea. The plea must be dated and signed by the defendant or his/her legal representative. In the plea, the defendant must either admit/deny/confess/avoid all the material facts alleged in the particulars of claim, and must clearly state the nature and the grounds of his/her defence, including any exception that he/she may have to the summons.

The defendant should deliver his/her plea timeously. The plea contains the basis of the defendant’s defence.

When a defendant fails to deliver a plea, the plaintiff may deliver a notice in writing calling upon the defendant to deliver a plea within 5 court days of the service of the notice (referred to as a ‘notice of bar’) and warning the defendant that his/her failure to do so will result in the case being set down without further notice. Furthermore, judgment may be given against the defendant in his/her absence, called default judgment.


The defendant may deliver a counterclaim or claim in reconvention, setting out any counterclaim that he/she may have.

Plea to counterclaim and further pleadings

If the plaintiff intends to defend the claim in reconvention, he/she must deliver a plea to the counterclaim within 10 court days of delivery of the counterclaim. Once that is done, the pleadings are closed and either party can apply for a trial date.

Application for and set down of trial date

The plaintiff then makes an application for a trial date, which the registrar will allocate on a date determined by the Court onto the trial roll. If the plaintiff does not apply for a trial date within the prescribed number of days after the pleadings have been closed, the defendant may do so.

Discovery of documents

Whilst waiting for a trial date, discovery must take place. The discovery process happens before the trial date and this is where each party is entitled to ask for disclosure by the other side of the documentation, and other material like tape recordings the other party intends to use at trial. Each and every document that a party will use at trial must be ‘discovered’, i.e. the other party must be given an opportunity to consider and inspect the document before the trial commences.

The documentation may include bank statements, financial information, shareholdings in companies, credit card statements, bond accounts and tax returns. It is usually during the discovery process that most of the disputed documents are found.

The discovery process is invaluable in divorce proceedings, as it leads to the discovery of hidden assets, if any, and can also satisfy both parties of what is in fact the true extent of the estate of the parties, if married in community of property, alternatively the value of the estate of each party ( if married out of community of property with accrual).
Should the other side be unco-operative, an attorney may issue subpoenas to relevant financial institutions to furnish documents the other party failed to deliver.

Further discovery and particulars

Further discovery is possible if a party believes that, in addition to the documents, books or tape recordings disclosed, other relevant documents or recordings may be in the other party’s possession.

If the whereabouts of such items are known, the party requesting them must state this in his/her notice for further discovery to the court. The Rules of Court provide for a mechanism to secure further and better discovery from a litigant who is hiding documents or not being truthful about document in his / her possession.

Further and better discovery is a powerful tool in divorce proceedings to secure additional information regarding a spouse’s financial status. A major advantage is the fact that the party who receives the notice must reply under oath. In terms of the court rules, a party may deliver a notice requesting such further particulars as are strictly necessary to enable him/her to prepare for trial, not less than 20 days before the trial. If a party does not adhere to such a request or fails to do so timeously and sufficiently, the other party may request for the case to be dismissed.

Pre-trial conference

The court may at any stage after close of pleadings, or at the request in writing of either party, direct that an informal conference be conducted in the presence of the judicial officer in chambers, in order to consider a settlement of disputes.


Trial proceedings commence with both parties or their legal representatives being given an opportunity to deliver an opening address, in which the court is informed of the issues that are in agreement and those that are in dispute between the parties.

If, on the pleadings, the burden of proof is on the plaintiff, he/she must give evidence first. Where the burden of proof is on the defendant, the defendant will be first.

Any witness may be examined by the court as well as by the parties, and the court may decide to call a witness not called by either party if it thinks his/her evidence necessary in order to discover the truth or answer the question before it.

After both parties have given evidence, whoever went first may again address the court. The other party then has a chance and the party who went first may reply.


A divorce trial must result in the court making a judgment. The court may grant any of the following orders:
• judgment for a party in respect of his/her claim in so far as he/she has proved the same;
• judgment for a party in respect of his/her defence in so far as he/she has proved the same; or
• absolution from the instance if it appears to the court that the evidence does not justify giving judgment for either party.


When a court makes a decision, including a postponement or amendment, the court may award such costs as may be fair, and generally favours the successful litigant. These costs may also be subject to taxation. A court may decide not to award costs at all.

Unopposed divorces

The most cost effective and fastest option is to settle your divorce by agreement. An uncontested divorce is one in which you and your spouse agree on the terms of your divorce. You can both consult with the same attorney if you choose to do so. Only the plaintiff appears in court. A settlement agreement is then drafted with the help of the attorney dealing with the agreement regards the children, maintenance and contact and division of assets, which agreement must be signed by both parties, and this agreement is made an order of the court.

Default divorces

A default divorce is a type of unopposed divorce. A court will grant a divorce by default if you serve a divorce summons on your spouse and he/she does not respond. In a default divorce, the plaintiff prepares a summons setting out his/her claims with or without the help of an attorney. A court issues the summons and a sheriff serves the summons on the defendant. The summons specifies the number of days in which the defendant has to file a notice of intention to defend, i.e. contest the divorce (10 days when the parties live within the jurisdiction of the court or 20 days if they live in different provinces). If the defendant does not answer by way of a notice of defence within the allotted time, the plaintiff may approach the court to enrol the divorce on the court roll and conclude the divorce on the defendant’s default. In such a case, only the plaintiff appears in court.

Is a DO IT YOURSELF divorce right for me?

• your divorce is uncontested;
• your divorce is not complicated;
• you have been married for a short period of time;
• you don’t have substantial assets to divide;
• there are no disputes regarding any children; and/or
• you are prepared to do all the admin yourself.

Parties must be cautious with DO IT YOURSELF divorces – specifically where children are involved or where there are significant assets, retirement annuities or pension funds, it is always advisable to seek the assistance of an attorney with family law experience or to involve a qualified third-party mediator, so that a detailed and proper settlement agreement (and parenting plan, if necessary) can be drafted and agreed. Fixing drafting errors or trying to resolve what parties thought would be the case and now is not after divorce when it is not contained in the Settlement Agreement can end up being a nightmare for all concerned and a costly legal exercise.



ID 100138425The Mediation Process

A mediator must be appointed by agreement between the parties in order for the parties to enter into a process of discussion on various issues relating to family matters ( including primary residence / contact / maintenance / assets). The parties must appoint a neutral independent suitably qualified professional ( either an attorney / social worker / psychologist) who will work with both parties to try to reach a settlement agreement. A mediator acts as a neutral independent party, and that person should have a legal and/or psychology area of expertise and the necessary experience. A mediator does not make a decision on behalf of the parties. The decision-making power remains with both spouses and the mediation process is voluntary and either parent can withdraw at any stage if they are no longer comfortable with proceeding or they are of the view that they are not going to achieve an agreement.

More on mediation

The parties do not need to be represented in mediation by attorneys. However, if a settlement agreement has been drafted with the help of the mediator, the parties can request their respective attorneys to review it. Where children are involved and the parties intend to make the parenting plan a court order, the Office of the Family Advocate must endorse the content of the parenting plan and should also peruse it and provide the court with an opinion on whether the arrangements contained in the agreement are in the best interests of the children.

Mediation will work for both parties if:

• you and your partner agree that you can negotiate in a fair and equitable manner;
• children are involved and you would like to draft a parenting plan;
• you wish to save money in terms of a contested divorce; and/or
• you want your differences to be resolved as soon as possible.

Mediation is an acceptable and effective manner to resolve disputes. It is will save the parties time and money, and allows parties to be directly involved in reaching a settlement. However, mediation requires that both parties are committed to resolve their differences without resorting to litigation.

The role of the mediator is to manage the negotiations in a neutral and unbiased manner.

Mediators do not offer advice. They mediator does not act for either of the parties.

There are some instances where mediation is unlikely to be effective, where there is allegations of drug or alcohol abuse / incidents of domestic violence or mental health concerns on the part of either spouse. Mediation is not suggested nor would it be proper in these cases.

In the event that mediation fails, information provided to the mediator during mediation is considered confidential. Mediation is a voluntary process, it can be terminated at any stage by either party or by the mediator if they are of the opinion that the process is failing.


If the parties can agree on how they wish to finalise their marriage, they can regulate their agreement in a written document called a settlement agreement, referred to as a consent paper, which will regulate the proprietary issues flowing from the termination of their marriage. The parties can agree outside the terms of their Antenuptial Contract or to draw up a settlement agreement in the terms that they are prepared to settle on provided that it is possible in law to execute the terms of the settlement. The settlement agreement becomes the Court Order of Divorce when the divorce is granted.

IN COMMUNITY OF PROPERTY Any money or possessions belonging to either of the spouses at the time of the marriage, or acquired by them at any time thereafter, cease to be the private property of the one person and become part of a joint estate in which each of the partners has an equal, undivided share.

Upon divorce, the assets of the joint estate as at the date of divorce will be divided equally between the parties, unless a spouse claims forfeiture and the court grants such a forfeiture order. A forfeiture order cannot be granted automatically and must be specifically requested in the summons.

In terms of the Act, the court has discretion when granting a divorce on grounds of irretrievable breakdown for a marriage in community of property to order that the patrimonial benefits of one party be forfeited in favour of the other. A gift received during the marriage does not fall within the assets that a party can forfeit and a spouse cannot forfeit assets that he/she brought into the joint estate.

When spouses are married in community of property, their assets are tied up in the joint estate and, when a court grants a decree of divorce, the assets must be divided. Where the spouses agree on a division of the joint estate, a settlement agreement may be drafted to be incorporated in the decree of divorce and made an order of the court. Where spouses do not reach an agreement on how to divide their joint estate (as often happens), the court has the power to appoint a receiver or liquidator to realise and divide the assets of the joint estate on its behalf.

Where one spouse is acting in a negligent or reckless manner and alienates assets of the joint estate pending divorce, the other spouse may lodge an application to the court to suspend his/her spouse’s capacity over the joint estate. When the court grants such an order, the spouse who brought the application may then control the estate without the other’s consent.
BY ANTENUPTIAL spouse retains his or her separate property and has complete freedom to deal with it. If one partner is declared insolvent, the other's property is protected from creditors. Apart from excluding community of property, this contract might contain various other provisions, such as the creation of a trust, or the settlement of property by one spouse upon the other. Despite this, the courts can order that, on divorce, a husband make over part of his estate and pay maintenance to a wife left potentially destitute.

Marriages contracted after 1 November 1984 are governed by three sets of rules:

IN COMMUNITY OF PROPERTY If no antenuptial contract is entered into before the marriage, the couple are still married according to the rules of community of property and the rules of joint administration apply (that is, both spouses administer their joint assets).

Before 1984: in community of property
The marriage of a couple entered into prior to 1 November 1984, without an antenuptial contract, is automatically in community of property, provided the husband was domiciled in South Africa at the time of the marriage. If the husband was domiciled elsewhere, the law of that country will determine the consequences of the marriage.
Any money and possessions belonging to either partner at the time of the marriage, or acquired afterwards, become part of the joint estate, which is owned by the partners in equal, undivided shares. Certain items can be excluded from the joint estate to become the sole property of one or other partner, for example, when a third party makes a gift or leaves a legacy to one of the marital partners with the proviso that it must not become part of the joint estate.
If it is a monetary gift or if it is a gift that is sold for money, anything purchased with the proceeds also becomes the sole property of the same person. However, any interest earned on money or income from property owned separately by one partner will normally become part of the joint estate unless this also has been specially excluded.
Engagement and wedding gifts given by a husband to his wife generally do not form part of the joint estate.
Just as all the assets of both partners form part of the joint estate, so must all debts owed by either of them be payable out of the joint estate, whether they were incurred before or after the marriage.

WHEN THE MARRIAGE ENDS share of the joint estate, with adjustments made for any fines, damages or certain costs incurred by either during the marriage.
If a marriage ends in divorce, and it is clear that one of the parties is to blame, the innocent partner may be awarded an order for partial or total forfeiture of the benefits of the marriage in community of property when the divorce is granted.
This means that, on division of the joint estate, the guilty partner may forfeit his or her share, or be entitled only to a half-share, or to whatever he or she has contributed to the joint estate, whichever amount is smaller.

MERITS AND RISKS The advantage of marriage in community of property is that each partner shares in the fortunes of the other. A woman cannot be left completely destitute at the end of her marriage because she is automatically entitled to a half-share of their joint property.
However, it also has a disadvantage: if one partner becomes insolvent, the other is protected only if he or she owns property that does not form part of the joint estate. Everything in the joint estate will be attached and sold off to pay any creditors.

Before 1984: by antenuptial contract
Many couples who married before 1 November 1984 entered into an antenuptial contract to ensure that their marriage would be out of community of property and out of community of profit and loss, and that the marital power (which gave the husband full power to deal with the joint property) would be excluded. Antenuptial contracts vary, although there are certain clauses that have appeared regularly over many years.
Although a couple could enter into an antenuptial contract where community of property was not excluded, this was seldom done. Normally the purpose of such a contract would have been for one of the partners to create a trust or to settle property on the other.
If the parties did not exclude the husband's marital power, the husband had full power to deal with the joint property, or even with his wife's property if the marriage was out of community of property. It became standard practice, therefore, to include a clause revoking the marital power.
Generally, couples married out of community of property are free to deal with their personal property as they choose at all times, and if one partner is declared insolvent, the other's property is protected.

After 1984: in community of property
Two major differences exist between marriages entered into before and after 1 November 1984: prior to that date, a marriage without an antenuptial contract automatically gave rise to community of property and the marital power; now absence of such a contract gives rise to community of property and joint administration.
The financial consequences of a marriage without an antenuptial contract entered into after the commencement of the Matrimonial Property Act do not differ from the financial consequences of marriages in community of property celebrated before the 1984 reform. The separate property of each of the spouses still forms part of a joint estate owned by the partners in equal, undivided shares.
Administration of the common property, however, does not fall exclusively to the husband (a 1993 amendment to the Matrimonial Property Act abolished marital power). Spouses in these marriages share the administration of the joint estate. In principle, each can perform any legal act in connection with the common property independently of the other, although a number of more important transactions require the agreement of both spouses and consent may be required in writing.

After 1984: by antenuptial contract with accrual
Since the promulgation of the Matrimonial Property Act, couples who married or who will marry by means of an antenuptial contract that excludes community of property will automatically be married according to the accrual system.
This means that they do not share their property while the marriage lasts, but at the end of the marriage they acquire a certain right to each other's property. The accrual is the extent to which the husband and wife have each become richer at the end of the marriage, compared with their respective financial positions on their wedding day. The spouse with the smaller accrual has a claim against the one with the greater accrual for half the difference between the two accruals.
The system ensures that each partner retains as his or her exclusive property for all time anything that he or she owned at the time they were married. Anything that either one obtains during the marriage (other than an inheritance, a legacy or a donation not otherwise agreed upon in an antenuptial contract or otherwise stipulated by the testator or donor) may have to be shared with the other partner should the marriage come to an end.

After 1984: by antenuptial contract without accrual
If accrual is excluded in the antenuptial contract, the marriage will be subject to the same rules that are applicable to marriages contracted with an antenuptial contract before the 1984 Act except that, on divorce, the court will have no power to redistribute property by virtue of a discretionary power.

Reference: Legal City



In South African law, every civil marriage is governed by a particular marital property regime. Spouses who do not conclude an antenuptial contract are automatically married in community of property. This means that you have a joint estate of their assets and liabilities. They must obtain permission from one another when making decisions regarding the assets. Upon dissolution of the marriage, the assets of the joint estate will in principle be divided equally between the parties.


There are exceptions to this general rule. Section 9(1) of the Divorce Act 70 of 1979 deals with the forfeiture of patrimonial benefits of marriage. It determines that a court granting a divorce order may make an order that the patrimonial benefits of the marriage be forfeited by one party in favour of the other, either wholly or in part.

Such forfeiture is allowed when supported by certain facts and/or circumstances. The Court may take the following into account when considering a different division of the joint estate:-

• The duration of the marriage;
• The circumstances leading to the break-down; and
• The substantial misconduct of one of the parties.

The party who seeks forfeiture must, accordingly, provide full details of the reasons/facts/circumstances he/she relies on to be entitled to a forfeiture of benefits. The onus is, therefore, on the spouse seeking forfeiture to establish that forfeiture is warranted and to indicate the nature and the quantum of the benefits to be forfeited. The Courts have adopted a conservative approach to the application of Section 9(1) and the spouse seeking forfeiture would have to show that any misconduct on the part of his/her spouse
was of a serious nature. Domestic violence or prolonged abandonment are examples of misconduct that have been used to found a forfeiture claim.

The party who is ordered to forfeit a patrimonial benefit, may in the end lose his or her rights to a fifty percent, or larger share, of the assets in the joint estate. In the recent decision of JW v SW 2011 (1) SA 545 (GNP), the Court held that unless the parties (either before or during the marriage) make precisely equal contributions, the party that contributed less shall on dissolution of the marriage be benefited above the other party if forfeiture is not ordered. This is the inevitable consequence of the parties’ matrimonial property regime. The legislature (in s 9 of the Divorce Act 70 of 1979) does not give the greater contributor the opportunity to complain about this. He/she can only complain if the benefit was undue.

Lastly, note that in terms of Section 9(2) of the Divorce Act, an order of forfeiture cannot be sought against a party where the grounds of divorce are either mental illness or continuous unconsciousness.


Profits made by each of the parties during the marriage are shared when the marriage is dissolved by death or divorce. All other property is retained by the original owners. This is known as the accrual system.


If the accrual system is excluded in the antenuptial contract, the marriage is subject to the same rules as marriages out of community of property contracted before the promulgation of the Matrimonial Property Act in 1984 except that, on divorce, the courts will have no discretionary power to redistribute property. There is no sharing of any assets at all and you are each liable for your own debt.

A marriage is out of community of property if it falls within one of the following categories:

• the parties entered into a valid ANC prior to their marriage that excludes community of property;
• the parties changed their marital regime by way of a court application from in community of property to out of community of property;
• the parties are black South Africans who married prior to 2 December 1988 without entering into an ANC; or
• the legal system of the country in which the husband was domiciled at the time of the marriage dictates that the parties will be married out of community of property.

Before 1 November 1984

Marriages out of community of property concluded before 1 November 1984 are based on the principle that each spouse has his/her own separate estate. Prior to 1984, spouses either entered into in community of property or out of community of property marriages. The accrual system only came into operation on 1 November 1984.

The consequences of divorce when married out of community of property before 1 November 1984

The most frequent claim which parties institute against each other when they are married out of community of property prior to 1 November 1984, is a claim for a redistribution of assets based on contributions made by the one party to the other party’s estate during the subsistence of the marriage, in terms of the provisions of Section 7(3) of the Divorce Act. The rules of Court require specific grounds to be placed before court to make such a claim and this must be substantiated in the pleadings. It is imperative to plead and prove a contribution, whether this is directly or indirectly to the increase of the other spouse’s estate. “ Contribution” is defined as a wide range of acts including – saving expenses which would otherwise have been spent, rendering services and saving expenses. This could include “ looking after the home” and “caring for the family”.

The Act sets out two requirements that must be met if the court is to consider granting a redistribution order:

• the spouse seeking the order must have contributed directly or indirectly to the maintenance or the increase of the other spouse’s estate during the marriage; and
• the court must be satisfied that by reason of such a contribution, it would be equitable and just to make a redistribution order.

The consequences of divorce when married out of community of property without the accrual after 1 November 1984

In a marriage out of community of property without the accrual contracted after 1 November 1984, there can be no claim for a transfer of assets. The argument is that there are now three matrimonial property regimes to choose from, and if the parties willingly decided to marry out of community of property and without the accrual system, one of the parties cannot later request a redistribution of assets. In such a regime, upon divorce, each party will retain their separate estates.

The consequences of divorce when married out of community of property with the accrual


Being married with accrual is in fact the most appropriate and ideal system.

A successful marriage is in fact based on equality and a partnership. Upon dissolution of the marriage, whether it is by death or divorce, the net values of the estates of each spouse must be determined separately and the larger estate must transfer half of the difference to the smaller estate. The accrual system does not apply automatically to all marriages out of community of property.

For the accrual system to apply, the ANC must be drafted in a certain way. The accrual system incorporates a calculation that is applied when the marriage is dissolved by divorce. The spouses will share the assets during the course of their marriage based on a particular calculation when the marriage is terminated.

There are certain assets which will not be taken into account when determining the accrual (and cannot be included in calculation of the the net value of the estate):

• Any asset excluded from the accrual system under the ANC, as well as any other asset that the spouse acquired by virtue of his/her possession or former possession of such asset.
• Any inheritance, legacy, trust or donation received by a spouse during the marriage from any third party, as well as any other asset that the spouse has acquired by virtue of his/her possession or former possession of the inheritance, legacy, trust or donation, unless the spouses have agreed otherwise in their ANC or the testator/trix or donor has stipulated otherwise.
• Any donation between the spouses.
• Any amount that accrued to a spouse by way of damages, other than damages for patrimonial loss or the proceeds of an insurance policy in respect of a dread disease.

The fact that a Trust’s assets are a trust’s assets does not automatically exclude those trust assets from an accrual determination.

The court may pierce the corporate veil of the Trust if the trust is in fact the alter ego of the donor / trustee. This means that the Court can declare that the Trust assets form part of the accrued estate. Where a spouse has transferred assets in his/her name into a trust, in order for the court to take such assets into account, there must be evidence first that the party in question controlled the trust, and second that, but for the trust, he/she would have acquired and owned the assets in his/her own name.

Commencement values and accruals

Where parties wish to enter into an ANC with the accrual system, they must ensure that they accurately reflect the commencement values of their respective estates (i.e. how much their estates are worth at the time of marriage) and that the other party accepts that the commencement value reflected is correct. It becomes problematic if one party claims that the other’s commencement value was inflated or completely incorrect.

Upon the dissolution of the marriage by divorce, the net estate value (assets less liabilities less excluded assets and/or commencement values) of each estate is determined separately. The larger estate must then transfer half of the difference to the smaller estate. The right to share in the accrual only activates upon dissolution of the marriage by divorce.

The commencement value...read more

The commencement value to be subtracted from the current value of the estate must be adjusted with the consumer price index (CPI) to make provision for any change in the value of money. To calculate the adjustment visit www.statssa.gov.za ‘Key indicators’.

The parties must prepare a detailed analysis of what comprises their current estate – this list must include all the assets, such as immovable property, furniture, vehicles, pension interest, annuities, policies, investments, bank accounts and interests such as shares and loan accounts in companies/partnerships/trusts or any other form of business, etc. obtained during the marriage at the present day values.

• Certain assets may be excluded and those assets must be deducted from the calculation, as well as any other assets acquired by virtue of the possession, or former possession, of the excluded assets. You would also have to deduct inheritances, legacies or donations, as well as any other asset acquired by virtue of the possession, or former possession, of the inheritances, legacies or donations.
• You need to deduct any debts and liabilities.
• You need to deduct the commencement value, if any, as stated in the ANC and adjusted by CPI.
• The net result will be the accrual in the estate.

If the parties cannot reach an agreement on what the accrual value is, then the court will have to make a decision on the issues at trial. However, in practice as the accrual is generally a simple or complicated calculation it is a FINANCIAL determination and the Courts will refer and request that a Receiver / Liquidator be appointed to calculate the accrual and report back to court in the absence of an agreement between the parties.

The receiver is not the South African receiver of revenue – it is either an attorney or accountant – appointed to investigate the estates and make a finding.

Divorce and Pension Funds

Generally the Pension Fund / Provident Fund is the largest asset in the divorce next to the marital home. The clause relating to the allocation of the Pension Fund in adivorce Settlement Agreement must be drafted by an attorney who specializes in Divorce Law. The Pension Funds are incredibly strict about wording and they will not hesitate to reject a claim if the clause is not correct which will result in substantial costs being incurred for the client for the matter to be redrafted and resubmitted to court.

Section 7(7) of the Divorce Act provides that a person’s pension interest or interest in an annuity fund will be taken into account for the calculation of their estates. The interest is deemed to be an asset in their estate, even though it is not yet payable.

The important relevant provisions that deal with the allocation of unaccrued pension benefits to a non-member spouse upon divorce are contained in the Divorce Act and in the Pension Funds Act 24 of 1956. (Financial Services Laws General Amendment Act changes Living Annuities and divorce)

If couples are married or in a civil union in community of property, each partner will have a claim against the other’s pension fund. The claim will be for half of the pension interest on the date of divorce.

Where couples are married out of community of property with the accrual, the spouse’s pension fund value will be taken into consideration in order to determine the value of his/her estate for purposes of the accrual calculation only.

There is no claim against the Pension Fund where couples are married out of community of property without the accrual. The definition of “pension interest” is to be read as including the after-tax withdrawal benefit ( as defined in the rules of the preservation fund) that would be payable to a member if he or she had opted to take a total withdrawal benefit as at the date of divorce.

The value of a pension interest is determined by definition in the Divorce Act read with the rules of the particular Pension Fund.

A Retirement Annuity is not a “policy” and cannot be ceded.

The clean-break principle

The Pension Funds Amendment Act, 2007, introduced the so-called clean-break principle for the treatment of retirement fund benefits upon the granting of a divorce decree. The Act allows retirement funds to deduct an amount or percentage upon divorce from a member’s benefit and pay it to the non-member spouse or to a retirement fund of his/her choice. The clean-break principle allows a non-member former spouse to access an agreed or court-ordered share of the member spouse’s retirement savings on divorce.

Any pre-determined amount may be paid from the member’s pension fund to a non-member spouse in terms of a divorce order granted under the Divorce Act, irrespective of the date of divorce, but may not be more than 100 per cent of the value of the member’s withdrawal benefit at the date of divorce.

In order for the Pension / Provident fund to make the deduction and payment to the non-member spouse, the fund must be ordered to endorse its records – which can only occur in terms of a Court Order - to such effect and/or to make payment to the non-member spouse. The non-member spouse can elect to receive a cash lump sum or to have the money transferred to an approved pension fund.

The Government Employees Pension Fund (GEPF) was amended to introduce the clean-break principle with effect from 1 April 2012.

In the past, the portion of a member’s pension benefit payable to a former spouse as part of a divorce settlement was only paid when the member spouse left the fund.

This is no longer the case.

The current position is that former spouses will now be able to receive their share of the pension interest within 60 days after the divorce has been granted.

Pension interest

‘Pension interest’ is defined in the Divorce Act for every type of fund except a preservation fund. According to the Pension Funds Act, ‘pension interest’ is:

1. Pension and provident fund - The benefits to which a member would have been entitled to in terms of the rules of the fund if his/her membership had terminated, due to resignation, at the date of the divorce.
2. Retirement annuity- The sum of the member’s contributions to the fund up to the date of divorce plus simple annual interest at the prescribed rate.
3. Preservation fund - The benefit a fund member would receive if his/her membership were notionally to terminate on the date of divorce.

It is possible for the parties to agree to a specific rand value to a non-member spouse instead of a percentage of the pension interest, provided that the amount does not exceed the value of the pension interest.

In terms of the Pension Funds Act, a pension/retirement fund is obliged to give the non-member spouse the right to decide how the pension interest award should be paid out, i.e. as a lump sum in cash or reinvested into another retirement fund. On presentation of a valid divorce order, the fund normally has 45 days to request the non-member spouse to decide how the pension interest due to him/her must be paid. The non-member spouse has 120 days in which to make a decision

Pension interest can be excluded in an ANC. Then the spouse would have no claim to the other spouse’s pension / provident fund at divorce.

How is pension interest calculated?

Pension interest in a retirement annuity fund is defined in the Divorce Act as ‘the total amount of that party’s contributions to the fund up to the date of divorce, together with a total amount of annual simple interest on those contributions up to that date’. The Pension Fund Act provides that the ‘total amount of annual simple interest payable in terms of the definition may not exceed the fund return on the pension interest assigned to a non-member spouse in terms of a decree granted in terms of the Divorce Act’.

In a preservation fund, if a once-off withdrawal has already been made prior to the divorce, the value of the remaining investment (which will usually be represented by the death or disability benefit) can be used to determine the termination value.

Divorce settlement agreements

Citing the fund in the divorce settlement agreement

The divorce settlement agreement must clearly state the name of the Pension Fund, the Pension Fund registration number, as well as any other identification numbers or information such as the manager of the Fund for clear identification by the Fund for payout.

Taxation of pension interest allocations

The non-member ex-spouse will pay the tax on the pension interest if he/she takes the benefit in cash at his / her own personal tax rate. If it is transferred to another retirement fund, the transfer will be tax-free.

It is best to obtain professional advice on what is the best for you. The pension interest deduction is taxable in the hands of the non-member spouse at their tax rate. It is important that the parties understand in the settlement agreement how the tax issue is to be addressed.

How much tax must be deducted?

Retirement fund lump sum withdrawal benefits consist of lump sums from pension, pension preservation, provident, provident preservation or retirement annuity funds on withdrawal (including assignment in terms of a divorce order). The taxation of an allocated pension interest is calculated by the Fund themselves by their actuaries and the non-member spouse will receive a tax directive once the Fund has paid over the tax benefit to SARS and the balance will be paid to the non-member spouse. Both the member and the non-member spouse should get professional tax advice, alternatively make enquiries with the Fund Administrators directly on the tax implications.

Maintenance claims pending divorce

Interim Maintenance claims before divorce

The law provides a mechanism for interim maintenance pending divorce being finalised. This is a Rule 43 in the High Court and a Rule 58 in the Regional Court. This is supposed to be a quick, effective and cost saving measure to help an applicant.

You can secure the following relief in a Rule 43 / Rule 58 -

• interim care or contact with the child;
• maintenance for the wife and/or children;
• enforcing certain payments, such as for the bond on the matrimonial home, vehicles, school fees, medical aid premiums and even deposits on new accommodation and relocation costs;
• interim contribution towards the costs of the divorce and legal fees; and/or
• an order for delivery of a car, furniture, etc.

Rule 43/58 deals with many of the issues that will ultimately be dealt with in the final divorce action, but is an interim solution.

A rule 43/ Rule 58 application can be brought:

• before issue of the summons;
• simultaneously with the issuing of the summons; or
• after a notice of intention to defend is received.

Who can claim?

An applicant is entitled to interim relief depending on the living standards of the parties.
The applicant must show that he/she has insufficient means and that the respondent can afford to meet the amounts being sought.

In a claim towards his/her legal costs, the following principles will apply:

• The test to be applied in considering the amount is that the applicant should be placed in a position to adequately present his/her case.
• The fact that the respondent is wealthy does not entitle the applicant to unlimited spending, there being a difference between what he/she wants and what he/she needs.
• What is ‘adequate’ depends on the nature of the litigation, the scale on which the respondent is litigating and the scale upon which he/she intends to litigate, with due regard being given to the respondent’s financial position.
• The applicant is not entitled to all his/her costs but merely a ‘contribution towards’ them. An applicant may lodge further applications later on in the process for his/her legal costs, including costs for each day of the trial.
• The contribution is not limited to disbursements only and may include reasonable attorneys’ reasonable.

Procedure to obtain interim relief in terms of Rule 43 / Rule 58

The spouse seeking an interim order is the applicant and must file a notice in terms of the Rule 43/58 and a Founding Affidavit with the court setting out the facts relating to the divorce and why the spouse is of the opinion that he/she is entitled to relief.

The applicant will need certain prescribed documentation to lodge an application for interim relief, including:

• a Notice in terms of Rule 43/58, requesting the respondent to file an opposing affidavit within 10 days;
• an affidavit accompanying the rule 43/58 notice; and
• detailed spread sheet proving income, expenses, assets, etc.

Contribution to Cost Applications

Often a wife may not have access to funds to pay for her own legal costs and to level the playing fields our courts have created a mechanism for a claim for a contribution to legal costs. Rule 43(1) and (6) clearly provides a mechanism whereby a party can claim a contribution to legal costs during the divorce proceedings. An applicant must be put into a position to present his/her case adequately and if one party for example embarked on litigation on a luxurious scale by paying exorbitant amounts to his attorneys a court will assist the other party. ln exercising its discretion in the determination of the amount of the contribution towards costs to be awarded, the court is bound by section 9(1) of the Constitution, Act 108 of 1996, to guarantee both parties the right to equality before the law and equal protection of the law - the equality of arms.



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