Divorce in South Africa: Contested and Uncontested

The grounds for divorce

The most common ground is the irretrievable breakdown of the marriage: the relationship has broken down to the point where there is no reasonable prospect of restoring it.

The Divorce Act 70 of 1979 also recognises mental illness or continuous unconsciousness of a spouse as grounds, in defined circumstances. A divorce is granted by the High Court or a divorce court with the necessary jurisdiction.

Uncontested divorce

A divorce is uncontested when both spouses agree on all the issues, such as dividing property, maintenance, and arrangements for the children. The agreement is usually recorded in a written settlement agreement.

Uncontested divorces are generally quicker and less expensive, because the court is mainly asked to make the agreed terms an order of court, provided they are fair and, for children, in their best interests.

Contested divorce

A divorce is contested when the spouses cannot agree on one or more issues. The matter then follows the litigation process, which can include exchanging documents, negotiation, and ultimately a trial if no settlement is reached.

Contested divorces take longer and cost more, but strong representation matters most here, because the outcome on property, maintenance and children is decided by the court.

What the divorce deals with

• Division of the estate, which depends on your matrimonial property system and any antenuptial contract.
• Spousal maintenance, where appropriate, depending on the parties' circumstances.
• Care and contact arrangements and maintenance for the children.
• Any accrual claim if you are married out of community of property with accrual.

Children come first

Where there are children, the court must be satisfied that the arrangements for their care, contact and maintenance are in their best interests, as required by the Children's Act 38 of 2005.

The Office of the Family Advocate may become involved to help ensure the children's interests are protected.