Understanding the Divorce Act in South Africa

Divorce, also known as the dissolution of a marriage, can be a complex legal process. Each country has different laws relating to it, and thus it is worth understanding how these laws work in your country. In South Africa, the process is governed by the Divorce Act of 1979 and requires legal intervention. Divorce law also covers issues about the custody of children, the distribution of assets and property, and child support. Over the years, South African law has changed dramatically, allowing for better provisions and safeguarding women and minor children. Here we explore these changes.

Prior to the South African Divorce Act of 1979, the dissolution of a marriage could only occur on the grounds of adultery, malicious intent, mental health issues of one spouse for a period of more than seven years, or the imprisonment of a spouse for more than five years. Each of these instances put the blame on one spouse (the criminal or adulterer who was at fault) while positing the other party as entirely innocent. This system often put women at a disadvantage and was based on guilt. Under this act, it was assumed that one party was always at fault when a marriage broke down, and these shortcomings were heavily criticised. Happily, this all changed in 1979 when South Africa’s Divorce Act came into play. Most significantly, the act shifted the focus on guilt and blame to focus on more realistic rules, including the newly included reason for the irretrievable breakdown of the marriage. Rules relating to criminal offences and adultery were taken away. Today, the following are grounds for divorce under South Africa’s Divorce Act.

  • • The irretrievable breakdown of the marriage:This covers a plethora of issues and means that the marriage has broken down to the point where it cannot be restored. This takes away the blame element and encompasses a range of scenarios, including adultery, criminal behaviour, addiction, the loss of love, or abuse. 
  • • Mental illness/continued unconsciousness 

Understanding these grounds is essential when a marriage breaks down. Moreover, women are free to use their surname rather than having to keep their husband’s name and the stigma associated with blaming one spouse is no longer an issue. The courts will also acknowledge the rights of both parents if there are minor children involved. Understanding these changes is important when going to court.

Consult the Professionals and Enhance Your Understanding

This is understandably a painful and stressful process, and this is why you need to work with experts who have a keen knowledge of the Divorce Act in South Africa. Understanding how the act works can empower you to know your rights and better understand the process. We understand the sensitive nature when a marriage dissolves, and that is why we offer absolute sensitivity and confidentiality throughout. We also have a great deal of experience in family law, including the division of property and assets, custody of children, maintenance, and more. If an agreement cannot be made through mediation, we’ll utilise our wealth of knowledge to help our clients enhance their understanding of this complex web of legal obligations. For more information on South African law and family law, get in touch with us and we’ll happily advise you.