What is Divorce?

Divorce is the legal dissolution of a marriage by a court of law. In South Africa, divorce is governed by the Divorce Act 70 of 1979, which defines it as a court order terminating the marriage relationship. Once a final divorce decree is issued, both parties are legally single and free to remarry. Divorce is distinct from separation (living apart without legal termination) and differs between uncontested divorces (agreed) and contested divorces (disputed).

Legal Definition in South African Law

Under the Divorce Act 70 of 1979, a divorce is granted by a court when the ground of irretrievable breakdown of the marriage is established. This is the only ground for divorce in South Africa. It means the marriage relationship has broken down to such an extent that it cannot be repaired or reconciled, and the parties can no longer live together as spouses.

Key Elements:

A court order issued by a judge or magistrate
Formal legal process (not done informally or privately)
Terminates all legal marital rights and obligations
Allows both parties to remarry legally
Requires proper service and notification of both parties

Uncontested Divorce

An uncontested divorce occurs when both spouses agree that the marriage has broken down irretrievably and agree on all terms.

What Parties Must Agree On:

Grounds for Divorce: Both agree the marriage is irretrievably broken
Asset Division: Agreement on how property, savings, and valuables will be divided
Custody Arrangements: Agreement on where children will reside and how time is split
Child Maintenance: Agreement on financial support for children
Spousal Maintenance: Agreement (if applicable) on alimony or support for either spouse

Process:

Shorter timeline (4–8 weeks)
Lower costs (R5,000–R15,000)
Minimal court involvement
Simpler documentation
Often handled in the Regional Court

Example: A couple married 15 years agrees to divorce. The husband keeps the house; the wife receives a lump sum. The children reside with the mother 70% of the time; the father has weekend contact. The father pays R2,000/month maintenance. Both sign affidavits confirming these terms. The court approves the divorce without hearing from either party.

Contested Divorce

A contested divorce occurs when one spouse disputes the grounds for divorce or disagrees with the terms (asset division, custody, maintenance).

Common Disputes:

Grounds: One spouse denies the marriage is irretrievably broken
Asset Division: Disagreement over property distribution
Custody: Disagreement over where children should reside or time-sharing
Maintenance: Disagreement over child or spousal support amounts

Process:

Longer timeline (6 months to 3+ years)
Higher costs (R30,000–R150,000+)
Full court litigation
Evidence presented at trial
Handled in the High Court

Example: A couple divorces. The wife opposes the divorce claim, arguing the marriage can be reconciled. Alternatively, they both agree to divorce, but the husband disputes the wife's claim that the business they built together is a marital asset. The court holds a trial where both sides present evidence about the business's nature and contribution to its success.

The Divorce Decree

A divorce decree is the formal court order granting the divorce. It is the legal document that officially ends the marriage.

Types of Decrees:

Decree Nisi (Conditional)

Issued immediately after the court finds grounds for divorce are met
Becomes final after 6 weeks if not appealed
During the 6-week period, either party can appeal or challenge the order
Does not permit remarriage until the 6-week waiting period expires

Decree Absolute (Final)

Issued after the 6-week waiting period following the Decree Nisi
Final and cannot be appealed (unless extraordinary circumstances)
Permits remarriage
Registered with the Department of Home Affairs

What the Decree Contains:

Names and ID numbers of both parties
Date and place of marriage
Date of the divorce order
Confirmation of irretrievable breakdown
Terms of custody, maintenance, and asset division (if applicable)
Signature of the judge or magistrate
Case number and date

Legal Effect of a Divorce Decree:

Terminates the marriage
Restores both parties to single status
Permits remarriage
Releases both parties from marital obligations (except maintenance obligations for children or agreed spousal support)
Changes each party's inheritance rights
Affects property ownership (asset division takes effect)
Alters custody and guardianship of children

The 6-Week Waiting Period

All divorce decrees in South Africa are subject to a mandatory 6-week waiting period between the Decree Nisi and the Decree Absolute. This period is mandated by the Divorce Act 70 of 1979.

Purpose:

Allows time for appeals or challenges to be filed
Ensures the decision is final before remarriage
Provides a "cooling-off period" for reflection

What You Cannot Do During This Period:

Remarry
Update your marital status officially
Assume a single status legally

What Happens After 6 Weeks:

If no appeal is filed, the Decree Absolute is automatically issued
The court registers the decree with the Department of Home Affairs
You receive certified copies from the court
Certified copies are used to update ID documents, bank records, and insurance

Divorce vs. Separation vs. Annulment

Divorce

Legally terminates a valid marriage
Irretrievable breakdown is the ground
Permits remarriage
Both parties become single

Separation

Partners live apart but remain married
No court order necessary (informal agreement)
Not valid for remarriage
Marital obligations (maintenance, inheritance) may continue
Less formal than divorce

Annulment

Rare in South Africa; not commonly granted
Requires that the marriage was void or voidable from the start (e.g., bigamy, fraud, lack of consent)
Different legal ground than divorce
Different procedure under the Divorce Act

Grounds for Divorce in South Africa

Historically, South Africa recognized fault-based grounds (adultery, cruelty). Since 1979, the Divorce Act 70 of 1979 changed the law to recognize only one ground: irretrievable breakdown of the marriage.

What "Irretrievable Breakdown" Means:

The marriage relationship is so broken that it cannot be repaired
Reconciliation is impossible
The parties can no longer function as a married couple
One party may initiate; the other cannot prevent it on grounds of disagreement alone

Courts Consider:

Length of separation
Conduct and attitude of both parties
Prospects for reconciliation
Whether the parties have established separate lives

Key Legislation

Divorce Act 70 of 1979 — Primary statute governing divorce in South Africa
Divorce Act 70 of 1979, Section 4 — Establishes irretrievable breakdown as the sole ground
Divorce Act 70 of 1979, Section 6 — Governs the 6-week waiting period
Divorce Act 70 of 1979, Section 7 — Addresses ancillary relief (custody, maintenance)

Common Mistakes

Confusing separation with divorce: A separation agreement does not end the marriage legally. Divorced parties are fully single; separated parties remain married.
Assuming a spouse can block the divorce: In modern South African law, either party can initiate divorce on irretrievable breakdown. The other cannot prevent it simply by disagreeing.
Remarrying during the 6-week waiting period: This is illegal. Your new marriage is void until the Decree Absolute is issued and 6 weeks have elapsed.
Thinking verbal agreement suffices: Divorce requires a court order. Verbal agreements or informal arrangements are not valid divorces.
Failing to register the decree: The divorce is final, but you should register it with Home Affairs and update ID documents for clarity.

For more on this topic, see how to apply for divorce.

For more on this topic, see divorce costs.

For more on this topic, see child custody.

When to Consult an Attorney

Consult an attorney if:

You are considering divorce
Your spouse has filed for divorce
You dispute the terms of a proposed divorce
You are uncertain about your rights and obligations
Children or significant assets are involved
You cannot afford legal fees (apply for Legal Aid SA)

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Reviewed by a verified Family Law attorney on the Justibly network. Disclaimer: This answer is for informational purposes only and does not constitute legal advice. About the Author: This answer was prepared by the Justibly Legal Research Team, reviewed for accuracy by practising attorneys admitted to the High Court of South Africa. Verify attorney credentials on the LPC register. Last updated: April 2026