The Parting Gate

The statute

Divorce is governed by the Divorce Act 70 of 1979. A marriage may be dissolved only by a court, and only on one of the statutory grounds. South Africa has a no-fault divorce system — the court asks whether the marriage has broken down, not who is to blame.

The three grounds

• Irretrievable breakdown (s 4) — the main ground: the marriage has reached a state of disintegration with no reasonable prospect of restoring a normal relationship
• Mental illness of a spouse (s 5) — institutionalised/incurable for the prescribed period
• Continuous unconsciousness of a spouse (s 5) — for the prescribed period, with no reasonable prospect of recovery

Guidelines for breakdown

Section 4(2) gives (non-exhaustive) guidelines from which a court may infer irretrievable breakdown: the spouses have not lived together as husband and wife for a continuous period of at least one year; one spouse has committed adultery and the other finds continued cohabitation irreconcilable; or a spouse has been declared a habitual criminal and imprisoned.

Section 5A — religious dissolution

Section 5A of the Divorce Act (inserted in 1996) addresses the situation where a party prevents the religious dissolution of the marriage. A classic example is the Jewish get (the husband's religious bill of divorcement): without it, a Jewish wife may be unable to remarry under Jewish law (agunah — "chained woman"). Where a party has the power to give or obtain a religious dissolution and refuses to do so, the court may refuse to grant the civil divorce until such dissolution is provided or the obstacle is removed. This gives the court leverage to compel a recalcitrant spouse to co-operate with religious dissolution as a condition of obtaining the civil divorce.

Division by regime

On divorce the estate is dealt with according to the matrimonial property system: an in community marriage is divided equally; an accrual marriage triggers the accrual claim; a marriage out of community without accrual means each spouse simply keeps their own estate.

Forfeiture of benefits (s 9)

A court may order forfeiture of the patrimonial benefits of the marriage against a spouse if, having regard to the duration of the marriage, the circumstances giving rise to the breakdown, and any substantial misconduct, it finds that the spouse would be unduly benefited if no order were made (Wijker v Wijker). A spouse can only forfeit what they would otherwise gain from the other's estate — never their own contributions.

Redistribution (s 7(3)-(6))

Where spouses were married out of community of property without accrual, a court may order a redistribution of assets — transferring assets from one spouse to the other to reflect the applicant's direct or indirect contribution to the other's estate. It is an equitable, broad discretion (Beaumont v Beaumont; Bezuidenhout v Bezuidenhout). Important reform: s 7(3)(a) originally confined redistribution to marriages entered into before 1 November 1984 (the MPA commencement). In EB v ER; KG v Minister of Home Affairs [2023] ZACC 32 the Constitutional Court confirmed two declarations of invalidity, decided together but on different points: KG struck the date limit, and EB v ER extended redistribution to marriages dissolved by death rather than divorce. Both declarations were suspended for 24 months; meanwhile the words "before the commencement of the Matrimonial Property Act, 1984" are notionally severed from s 7(3)(a), and a new s 36A is read into the MPA for the death case. So redistribution now reaches out-of-community non-accrual marriages regardless of date — but by way of an interim court order pending remedial legislation, not yet by statute. Accrual marriages share via the accrual calculation, not redistribution.

Pension interest (s 7(7)-(8))

The pension interest of a spouse is deemed part of their assets for the division, and the court may order the fund to pay a portion to the other spouse — giving effect to the clean-break principle.

No automatic right

There is no automatic right to post-divorce maintenance. Under s 7(2) of the Divorce Act a court may, in its discretion, order one spouse to maintain the other for a period or indefinitely, after weighing a list of factors.

The s 7(2) factors

• The parties' existing and prospective means
• Their respective earning capacities, financial needs and obligations
• The ages of the parties and the duration of the marriage
• The parties' standard of living during the marriage and their conduct so far as relevant to the breakdown
• Any redistribution order, and any other relevant factor

Kinds of order

Maintenance may be rehabilitative (for a limited period, to let a spouse retrain or re-enter the job market), permanent (typically after a long marriage where a spouse cannot become self-supporting), token (a nominal/small amount — only awarded where a present or probable future need actually exists, not as a general "insurance policy"), or none. Courts may also take into account the conduct of the parties under the s 7(2) factors insofar as conduct is relevant to the breakdown.

Settlement agreements (s 7(1))

Section 7(1) of the Divorce Act empowers a court to incorporate a settlement agreement into the divorce order, making it an order of court. Once incorporated, the agreement is enforceable as if it were a court order — breach is contempt of court. The court is not a rubber stamp: if the agreement is not in the best interests of the children or is otherwise contrary to public policy, the court may refuse to make it an order. Settlement agreements are the most common way spouses in practice regulate maintenance, children's residence, and property division.

Best interests paramount

In any divorce affecting children, the best interests of the child are paramount (s 28(2) of the Constitution; s 9 of the Children's Act 38 of 2005). The court acts as upper guardian of all minor children.

The court's oversight (s 6)

Under s 6 of the Divorce Act a court will not grant a divorce until it is satisfied that the arrangements for the welfare of the children — care (custody), contact (access) and maintenance — are satisfactory or the best that can be achieved. The Family Advocate may investigate and report.

Care, contact & maintenance

The court allocates care and contact (and, where needed, guardianship) between the parents in the child's best interests, and fixes child maintenance — both parents remain liable to support their children according to their means, whatever the divorce outcome.