DISSOLUTION OF MARRIAGES IN SOUTH AFRICA

1. Introduction
Divorce, also known as the dissolution of marriage, is the legal process of terminating a marriage or marital union. This process cancels or reorganizes the legal duties and responsibilities of marriage, thereby dissolving the bonds of matrimony between a married couple under the law. In South Africa, the legal dissolution of a marriage can only occur through a court order.

2. Ways to Dissolve a Marriage

2.1 Uncontested Divorce
An uncontested divorce is the quickest and most cost-effective option for dissolving a marriage, often resulting in less emotional stress for the family. In this type of divorce, both spouses work together to agree on key terms, including maintenance, division of assets, and child care arrangements. Both spouses may appoint an attorney to protect their interests and draft a formal settlement agreement, which is signed and made an order of the court. Uncontested divorces can often be finalized within 13 weeks.

2.2 Contested Divorce
A contested divorce occurs when spouses cannot agree on the terms of their divorce. The most common points of disagreement involve issues such as maintenance, division of assets, and child care. These disputes can lead to significant emotional and financial strain on all family members. Contested divorces should be avoided if possible, as they can be costly and drawn-out.

2.3 Mediated Divorce
Mediated divorces involve a neutral third party, such as a professional mediator, helping spouses negotiate an agreement when they cannot do so on their own. 

Mediators are skilled professionals who guide couples in focusing on long-term solutions rather than short-term differences. Once an agreement is reached, attorneys can draft the official settlement agreement, which is then submitted to the court. Mediated divorces are typically finalized in about three months and can reduce the costs associated with contested divorces.

3. Grounds for Divorce
South Africa recognizes three legal grounds for divorce, two of which are uncommon.

3.1 Irretrievable Breakdown of the Marriage
This is the most common ground for divorce, occurring when the marriage has deteriorated beyond repair with no hope of reconciliation. The Divorce Act 70 of 1979 lists certain conditions that may indicate irretrievable breakdown:

• Separation for at least one year
• Adultery, provided the “wronged” spouse believes reconciliation is impossible
• One spouse committing multiple crimes or being incarcerated
• Mental illness, with evidence provided by psychiatrists confirming the condition and prospects for recovery.

3.2 Community of Property
If a marriage does not include an antenuptial contract (or “prenup”), it is considered to be in community of property, meaning all assets and debts of both parties are shared equally. 

This can create problems if one spouse incurs debt or becomes insolvent, as the entire joint estate is affected. Upon dissolution of the marriage, either by death or divorce, the joint estate—including any liabilities—is divided equally.

4. Pension Interest and the Clean Break Principle
Pension interest refers to the value of a spouse’s pension at the time of divorce, with the non-member spouse potentially entitled to a portion of that value.

The Divorce Act allows the court to order a portion of the member’s pension to be paid to the non-member spouse when the pension benefit accrues. The non-member spouse can opt to take this portion as a lump sum or reinvest it in another retirement fund. The clean-break principle, introduced in 2007, allows the non-member spouse to receive their pension entitlement immediately upon divorce. However, this does not apply automatically to all public pension funds. Consulting a divorce attorney about your pension arrangements is crucial, as every situation is unique.

5. Spousal Maintenance
In South African law, maintenance is not automatically awarded to a spouse who is capable of supporting themselves. However, in some cases, the court may award rehabilitative maintenance to help a spouse regain financial independence after divorce. 

This is often granted when one spouse has forgone career opportunities, usually to care for children or the household. The court considers factors such as the couple’s financial situation, earning capacities, and the duration of the marriage when deciding on maintenance.

6. Conclusion
Civil marriages, civil unions, and customary marriages conducted by registered marriage officers can only be dissolved by a court order. The spouse seeking to dissolve the marriage must issue a summons, stating that the marriage has broken down irretrievably and outlining the terms for division of the estate. If the spouses have already reached an agreement, it can be included in the summons. Otherwise, the court will be asked to divide the estate or enforce any existing antenuptial contract. The summons must also address any arrangements for children born or adopted during the marriage.

If you are considering divorce or need legal advice regarding any aspect of marriage dissolution, NB Makhanya Attorneys Inc. is here to assist you. Our experienced team offers expert guidance through uncontested, contested, and mediated divorce processes, ensuring your rights and interests are protected. Whether you need help with the division of assets, spousal maintenance, or pension interest, we provide compassionate, effective legal support tailored to your needs. Contact us today to schedule a confidential consultation.