- South Africa follows a no-fault divorce system, allowing courts to grant divorces even if one spouse objects.
- Irretrievable breakdown remains the most common ground for divorce, alongside mental illness and continuous unconsciousness.
- While uncontested divorces can be finalised within weeks, contested and high-net-worth cases can take years and cost millions.
Unlike many jurisdictions, such as parts of the United States, South Africa’s divorce system does not require spouses to live apart for a fixed period before approaching the courts. Nor does it rely on fault-based findings such as adultery or cruelty. The central question is whether a marriage has reached a point of irreparable breakdown.
Cor Van Deventer, Director at Sandton-based law firm VDM Incorporated, says the system is designed to prevent people from remaining trapped in marriages that have effectively collapsed. “It is a more pragmatic approach to divorce that ensures individuals are not trapped in marriages that have clearly broken down,” he explains. “In contrast, many US states still impose waiting periods, which can prolong emotional and financial strain.”
South African courts recognise three statutory grounds for divorce, with irretrievable breakdown by far the most common. The other two, mental illness and continuous unconsciousness, are rarely relied upon due to strict evidentiary requirements.
When a marriage is beyond repair
A marriage is considered irretrievably broken when there is no reasonable prospect of restoring a normal marital relationship. Courts consider factors such as whether spouses have lived apart continuously for at least one year, whether trust has been destroyed, and whether reconciliation is realistically possible.
While adultery is no longer a standalone ground for divorce, it can serve as evidence of irretrievable breakdown if one spouse believes the relationship cannot be salvaged. Criminal convictions and imprisonment may also weigh heavily in the court’s assessment. “If a spouse has been convicted of multiple crimes or is serving a prison sentence, the court may deem the marriage unsustainable,” Van Deventer notes.
Importantly, even if one spouse opposes the divorce, the court is obliged to grant it if the irretrievable breakdown of the marriage is proven. “Crucially, even if one spouse proves irretrievable breakdown and the other opposes it, the court will grant the divorce,” he adds.
Mental illness and continuous unconsciousness
Divorce on grounds of mental illness is subject to strict safeguards. The defendant must have been institutionalised or detained as a mentally ill prisoner, with no reasonable prospect of recovery. The court requires expert evidence from two psychiatrists, one of whom has been appointed by the court.
Similarly, continuous unconsciousness applies where a spouse has been in an uninterrupted state of unconsciousness for at least six months. The court relies on medical evidence from two practitioners, including a court-appointed neurologist or neurosurgeon, to confirm the diagnosis and prognosis. “These are exceptional grounds and are approached cautiously by the courts,” Van Deventer notes.
The cost of agreement versus conflict
Uncontested divorces are the quickest and most cost-effective route. Where spouses agree on asset division, maintenance, and arrangements involving children, a single impartial solicitor can draft a settlement agreement that is made an order of the court. “Uncontested divorces generally take between six and 12 weeks to finalise and typically cost between R8 000 and R20 000,” Van Deventer says.
Mediated divorces offer an alternative where agreement is possible but difficult to reach. With the help of a professional mediator, disputes can be resolved without full litigation. Once consensus is reached, the final settlement is drafted and submitted to the court, usually within about three months.
In contrast, contested divorces are often lengthy, emotionally draining, and financially devastating. “Contested divorces can stretch on for months, even years, and can incur legal fees in the hundreds of thousands of rands,” Van Deventer explains. In high-net-worth cases, costs can escalate into the millions, especially where businesses, trusts, or pension interests are involved.
What spouses fight about most
Disputes frequently arise over the division of assets and property, particularly where marriages were concluded in or out of the community of property, with or without accrual. Disagreements may involve homes, vehicles, investments, business interests, and even concealed assets, which is a common feature in high-conflict divorces.
Spousal maintenance is another flashpoint, especially where one partner was financially dependent. Courts assess factors such as earning capacity, financial need, and contributions made during the marriage. Disagreements often arise about the obligation or the amount claimed.
Child-related disputes are among the most emotionally charged. Conflicts over a child’s residence, parental contact, and decisions relating to education, healthcare, and religion can become protracted legal battles. “These issues cause enormous distress, not only for the spouses but for the children as well,” Van Deventer warns.
Maintenance disputes may also arise where a parent under-reports income or fails to comply with obligations, often necessitating further legal intervention. In cases involving domestic violence or harassment, protection orders may be sought, with courts taking such allegations seriously, especially where children are involved.
Pension and retirement benefits can further complicate matters. Where spouses are married in community of property or subject to accrual, one party may be entitled to a share of the other’s pension interest. Administrative delays and resistance to payment frequently fuel additional disputes.
A legal process with human consequences
While South Africa’s legal framework aims to balance fairness with practicality, Van Deventer emphasises that divorce is never merely a procedural exercise. “Whether uncontested, contested, or mediated, each one carries its own complexities and legal weight,” he says. “It is therefore very important to understand your rights, seek professional guidance, and prioritise the well-being of all involved, especially the children.”
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