How to File for Divorce in South Africa: Step-by-Step Guide

What does family law cover in South Africa?

Family law in South Africa covers legal issues relating to marriage, life partnerships, divorce, children, maintenance, domestic violence, adoption and surrogacy. It is shaped by the Constitution, several key Acts, and the principle that a child's best interests are of paramount importance.

Family law is mainly about how people form families, how they live together, and how they separate in a way that is legally fair and safe. It covers both formal and informal relationships and increasingly recognises customary and same-sex relationships.

Core areas of South African family law

• Marriage and partnerships
  • Civil marriages under the Marriage Act 25 of 1961
  • Civil unions (including same-sex marriages) under the Civil Union Act 17 of 2006
  • Customary marriages under the Recognition of Customary Marriages Act 120 of 1998
  • Religious unions (Muslim, Hindu, etc.), partly recognised in various ways through case law and legislation
• Matrimonial property regimes under the Matrimonial Property Act 88 of 1984:
  • In community of property
  • Out of community of property with accrual
  • Out of community of property without accrual
• Divorce and separation
  • Formal divorce under the Divorce Act 70 of 1979
  • Separation of life partners or cohabitants by contract or court orders
• Children under the Children's Act 38 of 2005:
  • Parental responsibilities and rights (care, contact, guardianship, maintenance)
  • Parenting plans and mediation
  • Relocation and travel
  • Adoption and foster care
  • Surrogacy agreements (via High Court approval)
• Maintenance and financial support
  • Child maintenance and support between parents
  • Spousal maintenance after divorce
  • Maintenance for parents and other dependants in limited cases
• Protection from abuse
  • Domestic Violence Act 116 of 1998 (protection orders)
  • Protection from Harassment Act 17 of 2011

Key authorities and institutions

• Department of Home Affairs (DHA) for marriage registration, birth certificates, ID documents.
• Magistrates Courts for maintenance, domestic violence, some divorce matters, and everyday family disputes.
• Regional Courts (Divorce Courts) (within Magistrates Courts) for most divorces.
• High Court for complex divorces, surrogacy, and certain children's matters and adoptions.
• Office of the Family Advocate for reports and recommendations in disputes involving children.
• Legal Aid South Africa for qualifying low-income individuals in serious family matters.

How do marriages and matrimonial property regimes work in South Africa?

In South Africa, your marriage type and matrimonial property regime determine who owns what during the marriage and how assets and debts are shared on divorce or death. If you do not sign an antenuptial contract before marriage, you are automatically married in community of property.

These rules apply across civil, civil union, and customary marriages, although customary and religious aspects can add extra layers. Getting the property regime wrong can cause serious financial harm later, so it is worth understanding before or soon after you marry.

What types of marriages and unions are recognised?

• Civil marriages
  • Registered by a marriage officer (e.g. at Home Affairs, church, or independent marriage officer).
  • Governed by the Marriage Act and Matrimonial Property Act.
• Civil unions
  • Available to same-sex and opposite-sex couples.
  • Governed by the Civil Union Act, treated largely the same as civil marriages in law.
• Customary marriages
  • Valid if they comply with customary law requirements and are registered with Home Affairs.
  • Recognition of Customary Marriages Act gives them similar legal status to civil marriages, including property and inheritance rights.
• Religious unions (e.g. Muslim, Hindu, Jewish)
  • Historically not fully recognised as "marriage" but many rights are now protected through case law and specific statutes.
  • Parties often also register a civil marriage to secure full legal protection.
• Cohabitation and life partnerships
  • No automatic "common law marriage" in South Africa.
  • Rights mostly arise from contracts, the Constitution, and specific statutes, not from simply living together.

What are the main matrimonial property regimes?

South Africa has three main regimes: in community of property, out of community of property without accrual, and out of community of property with accrual. You choose through an antenuptial contract (ANC) signed before marriage, except in customary marriages where default rules differ.

Costs and practical steps for choosing a regime

To choose an out of community regime (with or without accrual), you must sign an ANC before the marriage is registered.

1. Consult a notary (specialised attorney)
   • Typical cost: around R2 500 - R8 000 depending on region and complexity.
2. Agree on regime and special terms
   • For example, excluding certain assets from accrual, or dealing with inheritances.
3. Sign the ANC in front of the notary
   • Must be done before the marriage date, otherwise you need a costly High Court application later to change your regime.
4. Registration of the ANC
   • Notary lodges it at the Deeds Office within 3 months.

If you are already married and want to change your property regime, you can apply to the High Court in terms of section 21 of the Matrimonial Property Act, but this is a more expensive and technical process that requires a lawyer and notification to creditors.

How does divorce work in South Africa?

Divorce in South Africa is granted on the ground that the marriage has broken down irretrievably, usually proven by long-term separation, adultery, or abuse. You must issue divorce summons in either the Regional Court (Divorce Court) or High Court, and you can get divorced even if your spouse refuses to cooperate.

The complexity and cost depend heavily on whether the divorce is uncontested (settled by agreement) or contested (disputed). Issues around children, property and maintenance must be resolved before the court will make the divorce order final.

Where and on what grounds can you get divorced?

• Courts that handle divorce
  • Regional Court of the Magistrates Court with jurisdiction where either spouse lives or last lived together.
  • High Court in the relevant province, typically used for very complex or high-value cases.
• Grounds for divorce under the Divorce Act
  • Irretrievable breakdown of the marriage (most common), shown by:
    • Separation for at least 1 year, or
    • Adultery, or
    • Abuse or serious incompatibility.
  • Mental illness or continuous unconsciousness in specific, medically verified circumstances.

Uncontested vs contested divorce

Basic steps in a divorce process

1. Consult a family lawyer (optional but highly recommended if you have children or property).
2. Issue summons
   • Your attorney drafts and issues divorce summons at the Regional Court or High Court.
   • The sheriff serves the summons on your spouse (service usually costs around R300 - R1 000 depending on location).
3. Responding to summons
   • Defendant has 10 court days to give notice to defend if they intend to oppose.
4. Settlement discussions / mediation
   • Parties negotiate, often with help of lawyers or a mediator, to reach a settlement agreement and parenting plan.
   • Mediation is strongly encouraged by courts and can save significant time and money.
5. Family Advocate involvement
   • Where children are involved, the Office of the Family Advocate may assess and give recommendations on care, contact and guardianship.
6. Finalising the divorce
   • In an uncontested divorce, one spouse appears briefly in court to confirm the settlement.
   • In a contested divorce, parties lead evidence and the court makes final orders on all disputed issues.

Key issues to resolve in a divorce

• Children
  • Where the children will live (care or primary residence).
  • How contact and holidays will work.
  • Who will be guardian and how major decisions will be made.
• Maintenance
  • Child maintenance and school fees, medical aid, extra-murals.
  • Whether any spousal maintenance is payable and for how long.
• Property and debts
  • Division of the joint estate or accrual calculation.
  • Who stays in or gets sold the house, and how retirement funds are shared (pension interest orders).

How are children, care, and contact decided after separation?

Care and contact arrangements in South Africa are decided according to what is in the best interests of the child, not what is easiest or cheapest for parents. The Children's Act favours shared parental responsibilities and rights, and encourages parenting plans and mediation instead of winner-takes-all battles.

Courts look at a range of factors, including a child's age, existing relationships, stability, security, and the ability of each parent to meet the child's needs. The Office of the Family Advocate often assists by investigating and making recommendations.

What are "parental responsibilities and rights"?

Under the Children's Act, these include:

• Care (previously called "custody"):
  • Where the child lives day to day, who provides daily supervision, food, clothing, schooling.
• Contact (previously "access"):
  • Time spent with the child if the parent does not have primary care, including weekends, holidays, and virtual contact.
• Guardianship:
  • Authority to make major decisions, such as passport applications, immigration, major medical treatment, school, and marriage consent.
• Maintenance:
  • Financial support for the child, which both parents must provide according to their means.

How do courts decide care and contact?

Courts are guided by section 7 of the Children's Act (best interests of the child). Common factors include:

• The child's age, maturity and views (older children have more say).
• The emotional, educational, physical, and security needs of the child.
• The stability and quality of the existing relationship with each parent.
• Practical considerations like school, support systems, and distance between parents.
• History of care, involvement and any abuse, neglect, or substance abuse.

Parenting plans and Family Advocate

• Parenting plan
  • A written agreement between co-holders of parental rights setting out care, contact, maintenance, and decision-making.
  • Can be registered with the Office of the Family Advocate or made an order of court.
• Office of the Family Advocate
  • Government office that investigates and prepares reports in disputes involving children.
  • Interviews parents, children and sometimes schools or caregivers, then recommends arrangements to the court.

Relocation and travel with children

• Relocation within South Africa or overseas
  • Cannot unilaterally relocate a child in a way that materially impacts the other parent's contact without consent or a court order.
  • Courts weigh the relocating parent's rights against the child's relationship with the left-behind parent.
• Travel
  • For international travel, the Children's Act and immigration laws require written consent from all guardians or a court order.
  • Unauthorised removal of a child from South Africa can amount to child abduction under the Hague Convention.

How is child and spousal maintenance calculated in South Africa?

Child maintenance in South Africa is based on the child's reasonable needs and the parents' respective financial means, not on a fixed formula. Spousal maintenance is not automatic and depends on factors such as the length of the marriage, each spouse's income and earning capacity, and sacrifices made for the family.

Maintenance is typically dealt with in the Magistrates Court (Maintenance Court), which does not charge court fees. Enforcement mechanisms are strong, and non-payment can lead to attachment of salary, assets, or even criminal charges.

How is child maintenance calculated?

The Maintenance Act 99 of 1998 requires a proportional approach: each parent contributes according to his or her means.

1. Calculate the child's reasonable monthly needs
   • Food, clothing, housing, transport, school fees, extra-murals, medical aid, healthcare, and other necessary expenses.
2. Determine each parent's net income and necessary expenses
   • Salary, business income, rental income, minus essential living costs and debt commitments.
3. Allocate the child's costs in proportion to each parent's means
   • For example, if Parent A can afford 70% and Parent B 30%, they each pay that percentage of the child's costs.

Courts increasingly expect parents to exchange financial disclosure (payslips, bank statements, budgets) to enable a fair calculation.

Spousal maintenance

• When it may be awarded
  • After a long marriage where one spouse gave up career opportunities to care for the home or children.
  • Where there is a significant income gap and the weaker spouse needs time to become self-supporting.
• Types of spousal maintenance
  • Rehabilitative maintenance (for a fixed period to enable retraining or job search).
  • Permanent maintenance (less common, usually where the spouse is older or unable to work).
  • Token maintenance (small amount to preserve the right to claim more later if circumstances change).

How to apply for maintenance at the Maintenance Court

1. Go to your nearest Magistrates Court and ask for the Maintenance Office.
2. Complete the application forms (J101 and supporting forms) giving details of income, expenses, and the child.
3. Attach documents
   • ID, child's birth certificate, proof of income, proof of expenses, bank statements.
4. Service on the other parent
   • Court arranges that the respondent is notified and given a date to appear.
5. Maintenance enquiry
   • A maintenance officer or magistrate hears evidence and assists in reaching an agreement or making an order.

Enforcement of maintenance orders

• Methods of enforcement
  • Emoluments attachment order (deducted from salary).
  • Attachment of bank accounts or property.
  • Criminal prosecution for wilful failure to pay maintenance.
• Common steps if maintenance is not paid
  • Return to the Maintenance Court with proof of non-payment.
  • Request a warrant of execution or salary attachment.

What protections exist against domestic violence and abuse?

Victims of domestic violence in South Africa can obtain a protection order, free of charge, at any Magistrates Court under the Domestic Violence Act 116 of 1998. This order can prohibit the abuser from certain conduct, remove them from the home, and direct police to confiscate weapons.

Domestic violence is broadly defined and covers physical, emotional, verbal, economic, and sexual abuse, as well as harassment, stalking, and controlling behaviour. Protection is available regardless of marital status and includes dating relationships, cohabitants, family members, and same-sex partners.

What counts as "domestic violence"?

• Physical abuse (hitting, pushing, strangling, threats with weapons).
• Sexual abuse (forced sex, degrading sexual behaviour, marital rape).
• Emotional, verbal, and psychological abuse (insults, humiliation, threats, gaslighting).
• Economic abuse (controlling money, withholding financial support, preventing work).
• Intimidation, harassment, stalking, and damage to property.
• Any other controlling or abusive behaviour that harms or may harm safety, health, or wellbeing.

How to get a protection order

1. Go to your nearest Magistrates Court
   • Ask for the Domestic Violence Clerk of the Court.
2. Complete the application form (affidavit)
   • Describe the abusive conduct and provide any evidence or witness details.
3. Interim protection order
   • The magistrate can grant an interim order the same day, even without the abuser being present.
   • The order is served by the police or sheriff on the respondent.
4. Return date (hearing)
   • Both parties appear on a set date. The magistrate hears evidence and can make the order final.

What can a protection order include?

• Prohibiting the respondent from committing or threatening specific acts of abuse.
• Ordering the respondent not to contact or come near you, your home, workplace, or child's school.
• Ordering the police to remove the respondent from the shared home in urgent cases.
• Confiscation of firearms or dangerous weapons.
• Emergency monetary relief or temporary custody of children in some situations.

Police and criminal law involvement

• Violation of a protection order is a criminal offence.
• You can phone SAPS or go to a police station, present the order, and request that they arrest the respondent for breaches.
• Many forms of abuse (assault, rape, criminal injuria) are also separate crimes that can be reported regardless of a protection order.

How do adoption and surrogacy work in South Africa?

Adoption in South Africa permanently transfers parental responsibilities and rights to the adoptive parent(s), and must be ordered by the Children's Court after a thorough assessment. Surrogacy is only legal if a High Court confirms a written surrogacy agreement before conception.

Both processes are tightly regulated to protect children and prevent exploitation. They require specialist legal and social work support and have strict procedural and consent requirements.

Adoption process overview

• Legal framework: Children's Act 38 of 2005.
• Who can adopt
  • Single persons, married couples, civil union partners, partners in a permanent life partnership.
  • Non-South Africans in certain circumstances, subject to intercountry adoption rules.

1. Contact an accredited adoption agency or social worker
   • They conduct screening, home studies, and matching.
2. Screening and preparation
   • Background checks, interviews, home visits, and training.
3. Matching and placement
   • Child is placed with prospective adoptive parents, often under supervision for a period.
4. Children's Court application
   • Social worker files reports; court considers consent of biological parents and best interests of the child.
5. Adoption order
   • Once granted, the child is legally treated as if born to the adoptive parents; a new birth certificate is issued.

Surrogacy process overview

• Legal framework: Chapter 19 of the Children's Act.
• Key rule: Surrogacy agreement must be confirmed by a High Court before any embryo transfer or artificial fertilisation.

1. Identify a surrogate and intended parent(s)
   • Surrogate must have had at least one living child and must reside in South Africa at the time of the agreement.
2. Draft surrogacy agreement with a specialist family lawyer.
3. High Court application
   • Court checks medical, psychological, and legal criteria and must be satisfied it is in the best interests of the prospective child.
4. Once approved, proceed with fertility treatment.
5. Parental rights
   • At birth, the intended parents automatically gain parental rights if the agreement was confirmed.

Surrogacy compensation is limited to actual expenses and must comply with the Act; commercial surrogacy is prohibited.

When should you hire a family lawyer in South Africa?

You should hire a family lawyer in South Africa when you face legal issues involving children, significant assets, or safety concerns, or when the other side already has a lawyer. A specialist family attorney can protect your rights, draft enforceable agreements, and navigate complex court procedures.

While some processes can be started on your own, early legal advice often prevents costly mistakes and long-term harm, especially in divorce, maintenance, and domestic violence matters.

Situations where a lawyer is strongly recommended

• Divorce with children or property
  • To negotiate a fair settlement, structure parenting plans, and handle pension interest, property transfers, and accrued benefits.
• High-conflict parenting disputes
  • When the other parent limits contact or threatens relocation or abduction.
• Complex maintenance disputes
  • When a parent hides income, runs a business, or lives "off the books".
• Domestic violence and urgent protection
  • If there are repeated breaches of protection orders, or police do not act properly.
• Adoption and surrogacy
  • Because of strict statutory requirements and High Court involvement.
• Changing your matrimonial property regime
  • Requires a High Court application and proper notice to creditors.

Costs and funding options

• Private attorneys
  • Charge hourly rates or fixed fees; ask for a fee estimate and written mandate.
• Legal Aid South Africa
  • Provides lawyers for qualifying low-income people in serious family matters, especially where children or safety are at risk.
• Pro bono and law clinics
  • Some firms and university law clinics offer limited free services in family matters.

What are the practical next steps if you have a family law problem?

The best next steps are to document your situation, seek early legal advice, and use the correct court or authority for your specific issue. Acting quickly often improves your options, especially for maintenance, domestic violence, and child contact problems.

Step-by-step action plan

1. Clarify your main goal
   • For example: "secure more time with my child", "start a divorce", "increase maintenance", or "get protection from abuse".
2. Gather key documents
   • ID and marriage certificate or proof of relationship.
   • Children's birth certificates and school details.
   • Financial records: payslips, bank statements, major expenses.
   • Evidence of abuse or non-payment (messages, emails, medical reports, previous orders).
3. Identify the right forum
   • Divorce: Regional Court or High Court.
   • Maintenance: Maintenance Court at your local Magistrates Court.
   • Domestic violence: Domestic Violence Court (Magistrates Court).
   • Adoption: Children's Court (with an agency or social worker).
4. Consult a family lawyer or legal aid office
   • Prepare a short timeline of events and bring all documents.
   • Ask about likely outcomes, timelines, and costs before you commit.
5. Consider mediation where safe and appropriate
   • Mediation can resolve many disputes faster and cheaper, especially about children and finances, and can be made an order of court.
6. Protect your safety and your children's stability
   • If there is any risk of violence, prioritise getting a protection order and safe accommodation.
   • Avoid sudden unilateral moves with children without legal advice, as this can backfire in later proceedings.

Staying organised, documenting everything, and getting advice early usually puts you in a far stronger position in any South African family law matter.