Divorce and Family Law

 

 

 

Many couples choose divorce mediation because it offers several advantages over traditional divorce litigation:

  • Cost-Effective – Mediation is generally more affordable than litigation.
  • Faster Process – It takes less time to reach a resolution.
  • More Control – Couples have more say in the decisions, rather than leaving it to a judge.
  • Better Communication – Mediation allows couples to communicate directly, avoiding the risk of miscommunication through separate lawyers.
  • Promotes Cooperation – It encourages a more collaborative approach.
  • Better Decision-Making – Couples can make decisions that work best for their family.
  • Emotionally Healthier – Mediation reduces stress and is gentler on both spouses and their children.

Yes, you can divorce a spouse who is incarcerated. However, if the divorce is contested, you may face challenges in serving legal documents to your spouse.

No. Your spouse cannot stop you from getting divorced. You cannot be forced to stay in a marriage which you no longer wish to be a part of. It is your right to get divorced, should you wish to do so.  
 

To obtain a copy of your decree, please contact the Registrar of the High Court, where the matter was dealt with. Follow this link for the contact details for the High Courts on the Office of the Chief Justice's website: www.judiciary.org.za/index.php/contact-us/regional-court
 

In South Africa, child custody is determined by what is in the best interest of the child. Factors include the child’s age, the parenting ability of each spouse, the child’s relationship with each parent, and the child's emotional and psychological needs. The court may award sole or joint custody.

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Divorce in South Africa

When you say "I do," the thought of divorce is likely the furthest thing from your mind. However, when a marriage reaches its end, navigating the legal process can be overwhelming, emotionally draining, and complex. At Aucamp Attorneys, we understand that divorce is not just a legal matter—it’s a deeply personal and life-changing experience for you and your family. Our dedicated team is here to guide you with clarity, compassion, and professionalism, ensuring that you receive the support and legal expertise needed to move forward with confidence.

What is a divorce? 

Divorce is the legal process of dissolving a marriage, whether a civil marriage, customary marriage, civil union, or religious marriage, through a court order. South Africa follows a "no-fault" divorce system, meaning that a divorce can be granted if one party believes the marriage has irretrievably broken down.

Types of Divorce and Timelines in South Africa 

Divorce is a significant life transition, and understanding the legal processes involved can help you make informed decisions. In South Africa, there are three primary types of divorce. The time, cost, and emotional impact of a divorce depend largely on which route you take.  

1. Uncontested Divorce – The Quickest and Most Cost-Effective Option
An uncontested divorce is the simplest and least stressful option, as both spouses cooperate to reach an agreement on critical matters such as asset division, maintenance, child care, and visitation rights.  

  • In this process, a single impartial attorney can be appointed to draft a legally binding settlement agreement, which both spouses sign before it is made an order of the court. Because there is no need for prolonged legal battles, an uncontested divorce can be finalized in a matter of weeks, making it the fastest and most cost-effective option.  

2. Mediated Divorce – A Structured Negotiation Process  
A mediated divorce is necessary when spouses struggle to reach a mutual agreement but want to avoid the lengthy and costly litigation process. In this case, a professional mediator—often appointed by an attorney—helps facilitate discussions and negotiations to resolve disputes amicably.  

  • Mediators are impartial professionals skilled in conflict resolution, helping couples move past short-term disagreements to focus on fair and sustainable solutions. Once an agreement is reached, attorneys draft the final settlement agreement, which is signed and submitted to the court for approval. Mediated divorces typically take about three months to conclude, making them a viable middle-ground option.  

3. Contested Divorce – The Lengthiest and Most Costly Route
A contested divorce occurs when spouses cannot agree on key issues such as child custody, financial support, or asset division. In some cases, emotional conflicts prevent one or both parties from settling, leading to prolonged legal battles.  

  • In contested divorces, both parties are required to appear in court multiple times, with the final divorce terms being decided by a judge. This process can take several years, incur substantial legal fees, and cause significant emotional strain on all involved, including children. Because of the financial and emotional toll, contested divorces should be avoided whenever possible.  

Grounds for divorce

Under South African law, a marriage can be dissolved  for the following 3 reasons: 

1. Irretrievable Breakdown  
Grounds for Irretrievable Breakdown 

  • Separation for a Continuous Period of at Least One Year - If spouses have lived apart for an extended period and there is no prospect of reconciliation, the court may consider the marriage irretrievably broken.  
  • Adultery and Loss of Trust - While adultery alone is not a legal ground for divorce, it may serve as evidence of the breakdown of the marriage if the wronged spouse believes that reconciliation is impossible.  
  • Criminal Convictions and Imprisonment - If one spouse has been convicted of multiple crimes and/or is serving a prison sentence, the court may deem the marriage unsustainable.  

2. Mental Illness 

  • A divorce may be granted on the grounds of mental illness if the defendant has been institutionalized for treatment or detained as a mentally ill prisoner. The court requires: Testimony from two psychiatrists (one appointed by the court).  
  • Proof that the defendant has no reasonable prospect of recovery.  

3. Continuous Unconsciousness

If a spouse has been in an uninterrupted state of unconsciousness for at least six months, the court may approve a divorce. In such cases, medical evidence from two practitioners

  • one being a neurologist or neurosurgeon appointed by the court
  • must confirm the spouse’s condition and prognosis.  

Possible issues of contention and concern for couples getting divorced

Divorcing couples in South Africa often face several issues of contention and legal concerns. The complexity of these matters depends on the type of divorce (contested, uncontested, or mediated) and the specific circumstances of the couple. Below are some of the most common areas of dispute and concern:  

1. Division of Assets and Property
  • Marital Regime - The way assets are divided depends on whether the couple was married in community of property, out of community of property with accrual, or out of community of property without accrual.  
  • Disputes Over Property Ownership - Couples may disagree on how to divide houses, cars, businesses, and investments.  
  • Hidden Assets - In high-conflict divorces, one spouse may try to hide assets to prevent equitable distribution.  
2. Spousal Maintenance (Alimony)   
  • A spouse may claim spousal maintenance if they were financially dependent during the marriage.  
  • The court considers factors such as financial need, earning capacity, and contributions made during the marriage.  
  • Maintenance disputes often arise when one party refuses to pay or believes the amount requested is unreasonable.  
3. Child Custody and Parental Rights 
  • Primary Residence - Determining which parent the child will live with can be a major source of conflict.  
  • Visitation and Contact Rights - Disputes may arise over how much time the non-custodial parent gets with the child.  
  • Parental Responsibilities - Issues such as decision-making on education, healthcare, and religion can cause disagreements.  
4. Child Maintenance (Financial Support) 
  • Calculation of Maintenance - Child maintenance is determined based on the financial means of both parents, but disputes can arise if one party underreports income.  
  • Enforcement Issues - Some parents may refuse to pay or fail to keep up with maintenance payments, leading to legal action.  
5. Emotional and Psychological Concerns 
  • Impact on Children - Divorce can be emotionally distressing for children, particularly in high-conflict cases.  
  • Emotional Manipulation - One spouse may attempt to alienate the child from the other parent.  
  • Mental Health Concerns - Divorce can lead to anxiety, depression, or even substance abuse issues for one or both parties.  
6. Legal Costs and Duration of Divorce  
  • High Legal Fees - A contested divorce, which requires extensive legal representation, can become extremely costly.  
  • Lengthy Court Battles - If spouses cannot agree, the process can take several years, leading to financial and emotional exhaustion.  
7. Protection Orders and Domestic Violence Issues  
  • If there has been a history of domestic violence, harassment, or abuse, one spouse may seek a protection order against the other.  
  • Courts take allegations of abuse seriously, particularly when children are involved.  
8. Pension Fund and Retirement Benefits  
  • If a couple was married in community of property or with accrual, one spouse may be entitled to a portion of the other’s pension or retirement savings.  
  • The division of pension funds often requires approval from pension administrators, which can cause delays.  
     

How Aucamp Attorneys Can Help

At Aucamp Attorneys, we understand that divorce is not just a legal process but also an emotional and financial challenge. Our experienced team can help you navigate disputes, protect your rights, and work toward a fair resolution, ensuring the best possible outcome for you and your family.  Contact us for a consultation.