South African Law on Divorce

The grounds for divorce in South African law are:

• • Irretrievable breakdown of the marriage;
  • Mental illness of a spouse;
  • Continuous unconsciousness of a spouse.

Yes, you can obtain a divorce in South African law even if you’re only married under Islamic law.

Here’s what you need to know:

• • On 14 May 2024, the Divorce Amendment Act 1 of 2024 (DAA) came into operation and introduced various provisions pertaining to the dissolution of a Muslim marriage in South Africa;
  • The DAA allows spouses married according to Muslim rites to approach State courts for a divorce;
  • You can ask the court to give orders pertaining to:
    • dissolution of your Muslim marriages;
    • custody, guardianship, and maintenance of minor children borne of your Muslim marriage; and
    • the division of assets acquired by either spouse during the subsistence of your Muslim marriage.

That appears to be the case if one has regard to section 5A of the Divorce Act 70 of 1979 (the Divorce Act), which stipulates that a court may refuse to grant a decree of divorce unless it is satisfied that the spouses have taken the necessary steps to dissolve their religious marriage. 

To institute divorce proceedings, you need to file a summons with the court, stating the grounds for divorce and what you’re asking for (e.g. division of property, child custody).

You can file for divorce in either the High Court or the Regional Court in your area.

If your spouse doesn’t oppose, you can have a simple, quicker process. You’ll still need to appear in court, but it’s usually straightforward. This is called an unopposed divorce.

Yes, you can represent yourself in a divorce proceeding, but it’s often advisable to have legal help, especially if there are complex issues like property division or child custody.

If your spouse opposes, there will be an exchange of court papers followed by a trial where both sides present their case in court. This can be lengthy and costly and is called an opposed divorce.

In a marriage in community of property, the marital estate is usually split equally (half-half) between spouses.

The family home is part of the joint estate and its value will be split. This might mean selling the house and dividing the proceeds, or one spouse buying out the other’s share.

If your Islamic marriage is considered out of community of property (which is often the default in Islamic marriages), here’s how the courts might handle asset division:

• • Generally, each spouse keeps the assets they brought into the marriage and those they acquired during the marriage in their own name.
  • However, the court has the power to make a fair redistribution if needed, especially if one spouse would be left at a big financial disadvantage.
  • The court might consider factors like:
  • Each spouse’s contribution to the household (including non-financial contributions like childcare);
  • The length of the marriage;
  • The financial needs and obligations of each spouse;
  • The standard of living during the marriage;
  • If you’ve contributed to acquiring assets that are in your husband’s name, you might be able to claim a share of these.

Remember, while these are general guidelines, each case is unique. It’s often helpful to consult with a family lawyer who understands both South African law and Islamic law to get advice tailored to your specific situation.

In a marriage out of community of property with accrual you look at how much each person’s wealth has grown since the wedding and the person whose wealth grew more shares the growth with the other.

Under South African civil law, pension and retirement funds can be considered part of the marital estate and may be divided.

In South Africa, this principle includes:

• • Safety: Ensuring the child is protected from physical or emotional harm;
  • Care: Making sure the child receives proper care, including food, shelter, education, and medical attention;
  • Emotional needs: Considering the child’s emotional bonds and need for stability;
  • Education: Ensuring the child’s education isn’t disrupted;
  • Cultural and religious background: Respecting the child’s cultural identity and religious upbringing;
  • Child’s opinion: Considering the views and wishes of the child, if they’re old enough to express them;
  • Relationships: Maintaining the child’s important relationships, including with both parents, siblings, and extended family;
  • Age and maturity: Taking into account the child’s age and level of maturity when making decisions;
  • Disability or special needs: Addressing any special needs the child may have;
  • Parental capacity: Assessing each parent’s ability to meet the child’s needs;
  • Financial stability: Ensuring the child’s financial needs are met.
  • Continuity: Trying to maintain stability in the child’s life where possible.

In practice, this might mean decisions about:

• • Where the child’s primary residence will be;
  • How much time they spend with each parent;
  • Which school they attend;
  • How healthcare decisions are made.

The court will look at all these factors to make decisions that best support the child’s overall wellbeing and development. This principle is designed to protect children during what can be a difficult time and ensure their needs are put first.

Under South African law, both parents are responsible for child maintenance, usually in proportion to their income and the amount of time the child spends with each parent.

The duration can vary greatly depending on the complexity of the case and whether it is being opposed, but a civil divorce can take anywhere from a few months to over a year.