No one enters a marriage expecting to end it in court. Yet for many South Africans, the breaking point arrives quietly—after years of distance, hurt, or disappointment—until living together becomes impossible. At that point, the law steps in. A marriage only ends in the eyes of the state when the legal grounds for divorce are met and the court issues a decree of divorce.

South African law recognises only two circumstances under which a marriage can be dissolved: the irretrievable breakdown of the marriage or, in rare cases, a spouse’s mental incapacity or continuous unconsciousness. Meeting these thresholds is the first step toward finality, as the law will not release spouses from their obligations until the required evidence is placed before the court.

When a Marriage Legally Ends

A marriage does not end the moment two people separate or agree that it is over. It ends when a South African court accepts that the marriage no longer exists in substance and that there is nothing left to protect in law. The Divorce Act 70 of 1979 sets out two clear grounds.

Irretrievable Breakdown of the Marriage

Most divorces are granted on this ground. A court considers a marriage irretrievably broken when there is no realistic chance of reconciliation. The law looks at the reality of the relationship, not appearances or sentiment.

Evidence may include:

• Abandonment, where one spouse leaves with no intention of returning
• Persistent infidelity, abuse, or harmful conduct that makes shared life untenable
• Extended separation with no effort or intent to repair the marriage
• Hostility or indifference so deep that the couple lives like strangers

The court does not judge why a marriage fails, only whether it has truly ended. This protects individuals from remaining legally bound to a life that no longer exists in reality.

Mental Incapacity or Continuous Unconsciousness

The second ground applies in exceptional cases. A divorce may be granted if one spouse:

• Suffers from severe, medically confirmed mental illness unlikely to improve
• Has been in continuous unconsciousness with no reasonable prospect of recovery

Courts require formal evidence from at least two independent medical practitioners, often including a psychiatrist. These provisions exist to release spouses from being legally trapped in marriages where shared life is no longer possible.

The Two Paths to Divorce

Once the legal threshold is met, a South African divorce proceeds as either uncontested or contested. The path taken shapes the cost, time, and emotional weight of the process.

Uncontested Divorce – Closure Without Conflict

An uncontested divorce occurs when both spouses agree on all terms:

• Division of property and assets
• Responsibility for debts or liabilities
• Primary residence of children, parental responsibilities, and maintenance

With all terms settled, the court simply reviews the settlement agreement and, if lawful and fair, issues the decree of divorce. This process is fast, private, and cost‑effective. It allows both parties to close the chapter with minimal disruption and expense.

Contested Divorce – When the Court Must Decide

A contested divorce begins when spouses cannot agree on property, custody, maintenance, or settlement terms. Litigation follows. The process involves summonses, affidavits, financial disclosure, and often multiple court appearances. Evidence is presented, and witnesses—including expert valuators, social workers, or psychologists—may be called.

Contested divorces are slow, public, and expensive. They can take months or years to conclude, and the final outcome rests entirely with the court.

How Divorce Moves Through the Courts

Divorce is only final when the court grants a decree of divorce. Until then, both spouses remain legally bound, with all the obligations and risks of marriage. The process moves through strict legal stages.

Step 1: Filing in the Correct Court

Divorce can be filed in the Regional Court of the Magistrate’s Court where either spouse resides, or in the High Court. Regional Courts handle most divorces efficiently, while High Courts hear cases involving complex estates or disputes. Filing in the wrong court wastes time and risks dismissal.

Step 2: Issuing and Serving the Summons

The plaintiff’s attorney issues a summons stating the legal grounds for divorce, the relief sought, and any interim measures requested. The Sheriff of the Court serves it personally on the defendant. Personal service is compulsory, even for amicable divorces.

Step 3: The Defendant Responds

The defendant has 10 court days to respond. If no response is filed, the divorce proceeds as uncontested. If a Notice of Intention to Defend, plea, or counterclaim is filed, the matter becomes contested and moves toward litigation.

Step 4: Disclosure and Pre‑Trial Steps

Contested divorces require full disclosure of financial records, property deeds, investments, and any information relevant to custody or maintenance. The court may order Rule 43 applications for temporary relief and hold pre‑trial conferences to narrow the issues. Failure to disclose honestly can result in penalties or adverse orders.

Step 5: The Court Hearing

Uncontested divorces are resolved in a single appearance. Contested divorces proceed as trials, with evidence, witnesses, and legal argument. Judges decide every unresolved issue—property, maintenance, custody—based on the evidence presented.

Step 6: Decree of Divorce

The decree of divorce formally ends the marriage. It confirms enforceable custody and maintenance orders and authorises the division or transfer of property. Without it, spouses remain legally married, regardless of separation.

Children, Property, and the Cost of Divorce

Children

The court prioritises the best interests of the child in every divorce. It considers where the child will live, how contact will be exercised, who will make decisions, and how maintenance will be provided. Parenting plans are often formalised, and the Family Advocate may be consulted to ensure stability and protection.

Property

Division of assets depends on the marital property system:

• In community of property – equal division of the joint estate
• Out of community with accrual – each retains own estate, but growth is shared
• Out of community without accrual – each leaves with their own estate

Homes, pensions, investments, and businesses often require formal valuations. Mistakes in this stage can have lasting financial consequences.

Maintenance and Financial Obligations

The court may order spousal or child maintenance, based on financial capacity and need. Ignoring legal obligations risks enforcement orders or criminal liability. The financial cost of divorce often extends long beyond the final hearing.

The Risk of Facing Divorce Alone

Every decision in divorce is permanent. Errors in filing, disclosure, or settlement can cost years of income, access to children, or ownership of property.

Procedural Errors

• Filing in the wrong court
• Improper service of the summons
• Incomplete financial disclosure
• Settlement agreements the court cannot enforce

Each mistake causes delays and opens opportunities for the opposing party to gain advantage.

Financial and Custody Risks

Without proper legal guidance, assets may be undervalued, debts mishandled, and maintenance incorrectly calculated. Custody and access agreements made outside of court hold no legal protection and can be challenged at any time.

The True Cost

Attempting divorce without representation often leads to higher eventual costs, prolonged litigation, and outcomes that are difficult—or impossible—to correct. Legal guidance ensures every step protects your rights, your children, and your financial future.

VDM Attorneys – Divorce and Family Law Attorneys in Sandton

Divorce reshapes your home, finances, and family. The decisions made during this process are permanent, and the court will enforce them long after the decree of divorce is issued. Clear, informed guidance from experienced professionals protects your rights, your children, and your future.

VDM Attorneys provides trusted insight into divorce and family law in South Africa. Our team in Sandton assists clients with meeting the legal requirements of divorce, handling property and financial matters, and securing arrangements that reflect the best interests of the family.