Family Law 2024 Comparisons

Grounds for Divorce

South Africa has a “no fault” divorce system. The grounds for divorce apply to all marriage relationships whether they are monogamous heterosexual marriages, monogamous homosexual marriages or monogamous or polygamous marriages entered into in terms of African custom.

The Divorce Act 70 of 1987 (“the Divorce Act”) recognises two no-fault grounds for divorce:

• an irretrievable breakdown of the marriage relationship (Section 4) – in this regard, the court must be satisfied that the marriage relationship between spouses has reached such a state of disintegration that there is no prospect of its restoration; and
• mental illness or continuous unconsciousness of one of the spouses without reasonable prospect of a cure (Section 5).

Service, Process and Timeline to Obtain a Decree of Divorce

There is no requirement for a period of separation prior to instituting divorce proceedings but separation for a period of one year prior to the institution of proceedings is rebuttable proof of an irretrievable breakdown of the marriage relationship (Section 4(2)(a) of the Divorce Act).

The process and timeline to obtain a decree of divorce differs for unopposed (uncontested) and opposed (contested) divorces.

Regardless of whether the divorce is opposed or unopposed, proceedings have to be initiated by one spouse (the plaintiff) against the other (the defendant), and a copy of the combined summons (the initiating document) must be served personally on the defendant by a Sheriff of the High Court. Thereafter, pleadings and notices in the action may be served by hand or by email, either directly on the defendant or on their appointed attorney.

No person is permitted to serve a summons (or any other initiating document) issued by a South African court on a person outside of South Africa without obtaining leave of the court by way of an edictal citation application.

If the whereabouts of the defendant are unknown, and the plaintiff can demonstrate that they have exhausted all ordinary means to locate and/or effect personal service on their spouse, the plaintiff can make an application to court for substituted service. The court may then permit service by alternative means such as by email or WhatsApp.

Following service of the summons, the defendant has either ten court days (if both parties reside within the jurisdiction of the court where summons was issued) or one month (if one party resides outside of the jurisdiction of this court) to notify the plaintiff and the court of their intention to defend the action.

Uncontested Divorces

In some instances, a defendant may not oppose the divorce action. This is usually the case if the parties have negotiated and entered into a written settlement agreement before proceedings are instituted. If the defendant fails to oppose within the time allowed, and proper service can be proved, the plaintiff can set the matter down for hearing on an unopposed basis and ask the court to grant an order in terms of their summons or incorporating the provisions of the parties’ written settlement agreement into the decree of divorce. To grant such an order, the court must be satisfied that:

• the grounds for divorce are met;
• the combined summons was personally served on the defendant (or that the order for substituted service was complied with); and
• the defendant was afforded sufficient time to enter their appearance to defend.

Uncontested divorces are relatively quick and take approximately three to four months from the date the summons is issued to the granting of a decree of divorce.

Contested Divorces

Broadly, contested divorces move through four phases: pleadings, discovery, pre-trial and trial.

Pleadings

After a defendant has given notice of opposition, they have 20 court days to deliver their plea and counterclaim (the defendant’s formal response to the summons as well as their own claims in respect of the divorce action). Thereafter, the plaintiff has 15 days to file their plea to the counterclaim (the plaintiff’s formal response to the defendant’s claims in respect of the divorce action). Pleadings will then close.

In some jurisdictions, such as Gauteng, parties are also required to file a financial disclosure form with supporting documents in divorces where maintenance and proprietary issues are in dispute before close of pleadings.

Discovery

Documents upon which either party intends to rely at the trial must be formally discovered. Parties have an obligation to discover all relevant documentation (not just documentation that is beneficial to their own case).

Parties exchange discovery notices calling on one another to provide a schedule of documents under oath that they intend relying upon at trial within 20 days of service of the notice. After receiving the first discovery affidavit, either party can request further and better discovery from the other party, calling for specific documentation within ten days of service of the notice. Further discovery is permitted on an ongoing basis, including during the trial, to ensure that the court has all relevant information at the trial.

If a party wishes to rely on expert evidence, they are required to notify their opponents timeously and to provide the court and their opponent with a summary of the expert’s opinion. Insofar as possible, the court encourages parties to agree on a jointly appointed expert. Parties are also entitled to issue subpoenas for witnesses to give evidence at trial or to provide any documentation upon which they intend to rely at trial.

After close of pleadings, either party may issue a request for further particulars that are necessary to enable said party to prepare for trial, which must be attended to within ten days of service of the request.

If either party fails to timeously respond to any notice issued in terms of the Rules of Court, the aggrieved party may approach the interlocutory court for an order compelling the non-compliant party to comply with the Rules and seek a costs order against the non-compliant party.

Pre-trial

Pre-trial procedures are aimed at ensuring the matter is ripe for hearing before making application to the registrar for a trial date.

Parties exchange pre-trial agendas before convening a pre-trial conference, which is a procedural meeting between the parties’ legal representatives. The parties are invited to make and canvas settlement of the issues in dispute, and are encouraged to narrow the issues in dispute insofar as reasonably possible. Issues that need to be discussed at the pre-trial conference include admissions, issues in dispute and other practical issues relating to the running of the trial, such as how the trial bundles will be prepared and how long the trial is expected to run.

The plaintiff will generally draft and file the minutes of the pre-trial conference.

The final step of pre-trial preparation is to finalise the trial bundles, which are the specific discovered documents the parties wish to use at trial. No document that has not been formally discovered can be used at the trial nor form part of the trial bundle.

Once all of the aforementioned steps have been completed, parties apply for trial readiness certification from the registrar of the court; once the matter is certified trial ready, application is made for a trial date.

If there is strict compliance with the Uniform Rules, a matter can be trial ready within 12 months but in practice it usually takes longer. Once application is made for a trial date, the date allocated is entirely in the discretion of the court and depends on the number of matters that are already enrolled and the availability of judges. In the Gauteng Division, the High Court registrars have been instructed to give preference to divorce matters when allocating trial dates, as the usual lead time for civil trials is approximately three years. This is not happening in other divisions, however, and attempts are being made to address this delay, which is highly prejudicial to parties.

General note

The procedure set out above relates to divorce actions in the High Court, but Regional Courts are also able to hear divorce actions. The process is substantively similar but different rules and practice directives are applicable.

Religious Marriages

Until relatively recently, religious marriages were not recognised in South Africa. However, the South Africa Law Reform Commission (SALRC) has attempted to rectify this by publishing a proposed Single Marriage Statute, and in the matter of Women’s Legal Centre Trust v President of the Republic of South Africa and Others [2022] ZACC 23 the Constitutional Court has upheld an order granted in the Supreme Court of Appeal declaring certain provisions of the Marriages Act and Divorce Act as unconstitutional for their failure to recognise Muslim marriages. The legislature was ordered to take steps to remedy this shortcoming within 24 months of the date of the court order (ie, by June 2024).

Void and Voidable Marriages

A void marriage is one that never came into existence based on non-compliance with the formal or material requirements for a civil marriage as set out in the Marriage Act 25 of 1961. There are no legal consequences arising from a void marriage.

A marriage is voidable if, before or at the time of the marriage, grounds were present upon which a court can be requested to set the marriage aside. A voidable marriage remains in force and all legal consequences of such marriage endure until such time as the court sets aside the marriage.

Requirements for a valid marriage include:

• solemnisation by an official marriage officer;
• both parties to the marriage must be present at the marriage ceremony (ie, no marriages are permitted by proxy);
• spouses may not be related to one another within the prohibited degrees of consanguinity (blood relationships); and
• both parties to the marriage must have legal capacity.

Jurisdiction

Jurisdiction for a South African court to hear any divorce is established by Section 2(1) of the Divorce Act, which provides that a court will have jurisdiction in a divorce action if one or both of the parties is:

• domiciled in the area of jurisdiction of the court on the date on which the action is instituted; or
• ordinarily resident in the area of jurisdiction of the court on the date on which the action is instituted and has or have been ordinarily resident in South Africa for a period of not less than one year immediately prior to that date.

A party to a divorce action may contest jurisdiction if the factors set out above are not met.

If a party has also instituted action in another jurisdiction, a party may apply to the court to stay proceedings. The applicant in such an application bears the onus of proving to the court that the balance of equity and convenience favours the other jurisdiction for such proceedings. In this case, the court will consider:

• whether the issue for the same cause of action and in respect of the same subject matter before it is in fact already pending adjudication in another court (the principle of lis alibi pendens) and, if so, which court is more convenient or fitting to determine such issue (the principle of forum non conveniens); and
• the particular facts of the matter, including:
1. if foreign law applies to the marriage;

1. the country in which evidence is situated;
2. where children and assets are situated;
3. if the proceedings were instituted for procedural advantage;
4. any possible prejudice suffered;
5. the desirability to avoid duplication of proceedings; and
6. the comparable costs and timelines of litigating in each country.

Domicile, Residence and Nationality

Domicile refers to the place an individual considers to be their permanent home but does not necessarily mean that is the person’s factual residence. The Domicile Act 3 of 1992 provides for a person to acquire a domicile by:

• operation of law, usually in the case of domicile of origin, being where the person was born; or
• choice – in this case, the place the person, of their own free will, chooses as their domicile with the intention of settling there for an indefinite period.

A person’s domicile is relevant in divorce actions in that South Africa (at this time) follows the lex domicilii matrimonii principle to determine the proprietary/patrimonial consequences of a marriage (ie, the proprietary consequences of the marriage are governed by the laws of country of the husband’s domicile at the time the marriage was concluded). South African law will apply to issues of maintenance and any issues relating to minor children born of the marriage. The lex domicilii matrimonii principle clearly does not pass constitutional muster, however, and is likely to be overturned if an appropriate case is brought to the Constitutional Court, or by legislation that is already in the pipeline.

Residence refers to the place where a person ordinarily resides and is relevant to establish a court’s jurisdiction as set out above, or to determine which division of the High Court has jurisdiction to hear the divorce, given that each province has at least one division of the High Court. In the Gauteng province (the most populous province), the Pretoria and Johannesburg High Courts have concurrent jurisdiction.

Nationality refers to a person’s legal belonging to a nation state but does not impact a court’s jurisdiction to hear a divorce action in South Africa, provided that the requirements set out above are met.

Grounds of Jurisdiction in Financial Proceedings

South African divorces aim to resolve all financial claims between parties upon a decree of divorce. As a result, financial claims in South Africa are dealt with as part of the divorce action, and no separate financial claims are brought. Please see 1.2 Choice of Jurisdiction (Jurisdiction).

Contesting Jurisdiction

Parties to divorce proceedings may contest jurisdiction on the basis that the requirements in Section 2(1) of the Divorce Act have not been met. Please see 1.2 Choice of Jurisdiction (Jurisdiction).

Staying Financial Proceedings

South African courts have the discretionary power to stay proceedings before them. Please see 1.2 Choice of Jurisdiction (Jurisdiction).

Financial Claims Following a Foreign Divorce

There is no procedure for bringing financial claims in South Africa following a foreign divorce, unless there is a specific term of a foreign order that is to be recognised and enforced in South Africa. Child maintenance claims may be brought in South Africa following a foreign divorce, and South African courts have jurisdiction over any child within the borders of the country.

As set out in 2.1 Choice of Jurisdiction, financial claims are dealt with by South African courts as part of the divorce action. Please see 1.1Grounds, Timeline, Service and Process.

A party in a divorce action may approach the court for an interim order for maintenance for themselves and/or the children, and/or for contact with the children, and/or for a contribution to their legal costs.

The Court’s Approach to the Division of Assets

The matrimonial property regime that governs the proprietary consequences of the parties’ marriage is the first consideration that a court will have. At this stage, the default matrimonial property regime in South Africa is a universal community of property.

If parties are married in community of property, the net joint estate (which includes premarital assets) is automatically divided equally between them, unless forfeiture by one party is ordered in limited circumstances.

If parties are married with a South African antenuptial contract out of community of property incorporating the accrual system, the party whose estate has accrued (grown) to a smaller degree during the marriage than the other spouse’s estate has a claim to half the difference in the spouses’ respective accruals (unless forfeiture is ordered in limited circumstances).

If parties are married with a South African antenuptial contract out of community of property without the application of the accrual system, each party would retain their own assets unless a redistribution is ordered by the court having regard to a number of factors. This is a fundamental change in the law since October 2023, prior to which prenuptial agreements were enforced regardless of their consequences (see the South Africa Trends & Developments chapter in this guide).

It is important to note that, if the proprietary consequences of the marriage are governed by the laws of another country, the South African courts will apply the law of that country as if the divorce were being heard in that country. As such, expert evidence about the applicable law will be required. The choice of law in relation to the proprietary consequences will be determined in accordance with the lex domicilii matrimonii, or by a choice of law clause in a prenuptial agreement, or by the contents of the prenuptial agreement itself.

Financial Orders to Regulate or Reallocate Assets

If the parties have not reached an agreement between themselves, the court can make an order in respect of the payment of maintenance for any period, a transfer of assets, lump sum payments, periodic payments and/or the transfer of pension interests.

The courts consider the matrimonial property regime that governs the marriage as a starting point. If there are other claims (such as a forfeiture of benefits, redistribution or spousal maintenance claim), these will also be considered. Factors the court will take into account include whether:

• the order is just and equitable;
• the party contributed directly or indirectly towards the maintenance or increase of the other party’s estate; and
• the party saved expenses that would otherwise have been incurred.

Identifying Assets and the Disclosure Process

The parties are required to make full financial disclosure to one another and the court during the litigation process. In Gauteng, this happens initially by way of a comprehensive Financial Disclosure Form, which is signed under oath and penalty of perjury. The parties can then make use of the Uniform Rules of Court, which provide for extensive discovery and the power to subpoena and call witnesses. Subpoenas are frequently used to procure documents and information from banks, employers and relevant companies and trusts, but cannot be issued on foreign entities or individuals.

Property Regimes and the Division of Assets

There are two main matrimonial property systems in South Africa: marriages in and marriages out of community of property.

Marriages “in community of property” (universal property) is the default matrimonial property system in civil marriages in South Africa. The consequence of a marriage in community of property is the creation of a “joint estate”, where all the assets are combined and the parties are jointly responsible for the liabilities of the other.

Marriages “out of community of property”, created by entering into a prenuptial agreement, have complete separation of property during the marriage. The accrual system will apply to all marriages out of community of property, unless the parties have expressly excluded its application in their prenuptial contract. In terms of the accrual system, the value accrued during the marriage (with a few exceptions) is shared upon the dissolution of the marriage by death or divorce.

In a marriage out of community of property and excluding the accrual system, the court may take certain factors into account and order a redistribution of assets from one party to the other in order to prevent unfairness. This is a recent fundamental change to the law; please see the South Africa Trends & Developments chapter in this guide. 

Trusts

Trusts are recognised in South Africa. The trust property is held by the trustees, in terms of the trust instrument (deed). The trustees manage the trust property for the benefit of beneficiaries (persons or entities).

Trust property is ordinarily not considered part of a person’s estate for divorce purposes. If it can be proven that the trust is the “alter ego” of one or more of the trustees of the trust, or that the trust is a sham, and that a party transferred assets into the trust during the marriage in a mala fide attempt to deprive the spouse of their legitimate claims on divorce, then the trust property could be considered part of the spouse's estate for the purposes of the divorce; only then would the trust assets be included in the determination of the value of the estate of such party in divorce cases. As such, the bar is quite high for parties seeking to include trust assets in divorces.

Attitudes Towards Spousal Maintenance

Parties have a reciprocal duty of support to each other during marriage, but there is no automatic right to spousal maintenance post-divorce in South Africa. The reciprocal duty of support that exists between spouses during the subsistence of the marriage terminates upon the dissolution of the marriage (by death or divorce).

Parties are able to agree to the payment of maintenance post-divorce by one party to the other. A court granting a decree of divorce can make an order in accordance with such a written agreement. In the absence of an agreement for spousal maintenance post-divorce, a party who has a need for maintenance post-divorce can bring such a claim in terms of Section 7(2) of the Divorce Act. This provides that a court granting a divorce may make an order for the payment of maintenance by one party to the other, which it deems to be just and equitable, after considering a number of factors (such as the means of both parties, the duration of the marriage, the standard of living during the marriage, the conduct of the parties, the age of the parties and the respective earning capacities of the parties). Post-divorce spousal maintenance can be ordered either permanently (which is rare) or for a rehabilitative period.

If a marriage is dissolved through the death of one of the parties, a spouse could have a maintenance claim in terms of the Maintenance of Surviving Spouses Act 27 of 1990.

Interim Maintenance

A party that requires interim maintenance can, during the course of the divorce litigation, approach the court in terms of Uniform Rule 43 for an order for the payment of maintenance, which will remain in place pending the outcome of the divorce action. A contribution towards legal costs in order to put the parties on an equal footing is also considered to be a form of maintenance.

Ongoing Maintenance

The court is able to make any order for maintenance that it finds just and equitable. There is no restriction in respect of the duration of maintenance agreements: maintenance orders can be made for a period of time, for the remainder of their lifetime, or until the remarriage of the party who receives the maintenance payments.

The quantum of the maintenance ordered is based on the party’s reasonable and necessary maintenance needs, as well as the paying party’s means.

Prenuptial and postnuptial agreements are both recognised in South Africa.

Prenuptial Agreements

Prenuptial contracts are drafted in line with the Matrimonial Property Act 88 of 1984 (MPA). The prenuptial contract must be entered into prior to the parties entering into a marriage, and must be attested to before a notary public. The prenuptial contract is then registered at the Deeds Office and becomes public record. If parties fail to register their prenuptial agreement, it is nevertheless binding between them, but does not affect third parties (eg, creditors).

Postnuptial Agreements

Postnuptial contracts are governed by Section 21 of the MPA, under which spouses are able to apply to the court jointly for leave to change the matrimonial property system that applies to their marriage. The court will consider whether there are sound reasons for the change to the matrimonial property system, and whether sufficient notice has been given to creditors and no other persons will be prejudiced by the change. If the court is satisfied, it will grant the parties leave to enter into and register a postnuptial contract. Postnuptial agreements that seek to change the matrimonial property system but have not been permitted by order of court in terms of Section 21 are not valid.

Court Handling of Prenuptial and Postnuptial Agreements

As set out above, the court will firstly consider the matrimonial property regime that governs the parties’ marriage, in considering the division of assets on divorce. If a valid prenuptial or postnuptial contract is in place, this will determine the matrimonial property regime of the parties. The courts will enforce the terms of prenuptial or postnuptial agreements (unless agree to otherwise between the parties).

In certain instances, parties have claims that may result in a distribution not in line with their prenuptial or postnuptial agreements, such as claims for the forfeiture of benefits or a redistribution of the assets in terms of Section 7(3) of the Divorce Act (see KG v Minister of Home Affairs and Other [2023] ZACC 32). Please see the South Africa Trends & Developments chapter in this guide for more information.

Unmarried Couples and the Division of Assets

Currently there is no legal duty of support of unmarried cohabitants in South Africa. This means that a cohabitant partner does not have a right to claim maintenance upon the termination of the relationship. Similarly, cohabitants do not have an automatic claim to the assets of their partner on the breakdown of the relationship. This means that cohabiting parties will retain all assets in their respective names at the termination of the relationship and there is no “asset sharing”.

However, in certain circumstances the common law rules governing universal partnerships may assist cohabitants by providing them with a legal claim. A universal partnership is a contract (which may be express or tacit) in which the cohabitants agree that their property will be shared between them. This relates to property that they presently own and property that they may acquire in future. It is a difficult claim to prove, but South African law has developed to extend the remedy even to partners who may only have made a contribution to the partnership in the domestic sphere.

The Rights of Co-Habitants

Simply put, cohabitant partners do not acquire any rights or financial claims against their partners by virtue of a cohabitation relationship. As set out above, there is no provision for a claim for maintenance or a sharing of assets (“a financial claim”). This position continues to be true regardless of the length of the cohabitation or whether the parties have children. There is no principle of “common law marriage” in South Africa, and the duration of cohabitation does not influence a party’s position for a financial claim.

If partners in a cohabitation relationship have children, this similarly does not impact their rights or legal claims as a partner. The only claims the would arise on the termination of such a relationship would be claims relating to the children, such as:

• care of children;
• contact with children;
• guardianship of children; and
• maintenance for children.

When entering a cohabitation relationship, parties may elect to enter into a cohabitation agreement to regulate rights and claims in terms of the laws of contract.

Failure to Comply With a Financial Order

There are two types of financial orders that form part of divorce orders in South Africa. One is for maintenance in respect of a spouse and/or child, and the other is in respect of the proprietary consequences of the marriage, which will depend on the parties’ matrimonial property regime. These orders can be granted by South African High Courts or Magistrates Courts.

If a party fails to comply with a financial order (either maintenance or capital), there are various methods of enforcement, as follows:

• a writ of execution;
• an emoluments attachment order;
• a garnishee order;
• attachment of a pension, annuity or other benefit; and
• a contempt of court order.

Writ of execution

If a party has failed to comply with a financial court order, the offended party (creditor) can prepare a writ of execution to be issued by the court. This writ of execution is accompanied by an affidavit, setting out the facts relating to the breach of the order, and the court order must be attached.

The writ of execution will be issued by the court without notice to the debtor and then served by a Sheriff on the debtor. After service, the assets of the debtor will be attached in order to satisfy the debt. These assets can be any movable property (including bank accounts), as well as immovable property.

If a bank account is attached, the bank will be served with the writ as well as a notice of attachment, and the funds held in the account will be frozen and then paid over to the creditor. If movables are attached, they will be removed and sold in execution to satisfy the debt. The attachment of immovable property is somewhat more complicated but, if successful, the property will be sold on auction.

Emoluments attachment order

The second method of enforcement is an emoluments attachment order. In such an instance, the creditor would approach the court on application after a breach of a financial order. This application is made on notice, and the employer of the debtor will be cited in the application. If successful, the court will order that repayment of the debt is made to the creditor directly by the debtor’s employer and deducted from the debtor’s salary or wages. This can be done on a singular instance, if sufficient, or on an ongoing future basis if necessary.

Garnishee order

A garnishee order is to be distinguished from an emoluments attachment order. It allows the creditor to attach any debt owing to the debtor by a third party, for that debt to be paid directly to them. This application is made on notice, and the third party must be cited.

Attachment of a pension, annuity or another interest

This method of enforcement is prescribed by Section 26(4) of the Maintenance Act 99 of 1998 and provides that a creditor may approach a court to seek an order that a pension, annuity, gratuity or compassionate allowance or other similar benefit in the name of the debtor be attached and paid to the creditor. In this instance, such an interest will be attached in terms of a writ of execution or another of the above remedies that has already been granted. For example, if a writ of execution is successfully obtained, this method of enforcement can be used to attach a debtor’s pension interest. This is done by application to the court on notice, and the financial institution that holds the policy must be cited. If successful, the court will order the financial institution to make payment of the debtor’s pension interest (or a portion thereof) directly to the creditor to satisfy the debt.

Contempt of court

If a debtor is in breach of a financial order, the creditor may make application on notice for the debtor to be held in contempt of court. In order to be successful, the creditor must show that:

• the debtor is aware of/has knowledge of the order;
• the debtor is in breach of the order;
• the debtor’s breach of the order is wilful; and
• the debtor's breach of the order is mala fide (in bad faith).

If successful, a court will make an order of enforcement (ie, ordering the debtor to pay the debt), and this order will be coupled with an order for the debtor’s imprisonment. This period of imprisonment will be suspended if the debtor complies with the enforcement order by making payment and if the debtor is not again found to be in contempt of the court order within a specified period. If the debtor is again found to be in contempt of the order within this specified period, they will be sentenced to a period of imprisonment.

International Enforcement of a Financial Order

In terms of divorce orders (which in South Africa contain financial orders), Section 13 of the Divorce Act states that South African courts will recognise the validity of a divorce order granted in a foreign country if, on the date on which the order was granted, either party to the marriage was a national, domiciled or ordinarily resident in the country concerned. This, however, does not mean that a South African court will enforce such an order without prior steps being taken.

If one requires enforcement of a foreign divorce order or other financial order, steps can be taken to obtain enforcement of the order by a South African court. A party may bring an application in a South African court for a “mirror order” of the foreign order to be made.

Alternatively, in respect of maintenance orders only, a party may utilise the processes provided by the Reciprocal Enforcement of Maintenance Orders Act 80 of 1963 (REMO). In order to utilise this process, the foreign country where the maintenance order was granted must have entered into a reciprocal agreement with South Africa. REMO is only available in respect of maintenance orders, whereas an application for a mirror order to be made can be in respect of any type of foreign court order.

Media Reporting on Financial Cases

In South Africa, unless specifically provided otherwise by law, representatives of the media have the right to attend court proceedings for the purposes of reporting on such proceedings. However, there are exceptions to this. Divorce cases may not be reported on in a manner that in any way identifies the parties, but the media may report on the facts of a case. 

Anonymising Proceedings

Judgments in all divorce matters are now anonymised, using only the parties’ initials.

ADR mechanisms are encouraged, and the SALRC has published a discussion paper relating to the codification of different manners of ADR, such as mediation, attorney-assisted mediation, parental co-ordination/facilitation, collaborative dispute resolution and arbitration. However, the Arbitration Act 42 of 1965 does not permit arbitration in matrimonial matters or any matters that are incidental thereto (Section 2(a)). Notwithstanding this, arbitration has long been advocated for in matrimonial matters, and the SALRC has recommended draft legislation to the Department of Justice in respect of the arbitration of disputes relating to patrimonial claims and issues relating to minor children, subject to the judicial oversight of the High Courts.

Mediation is encouraged and litigants instituting an action must, at the outset, confirm whether they agree to the referral of the dispute to mediation or not and provide reasons for their view. Adverse costs orders may be considered in circumstances where one party refuses to engage in mediation prior to trial.

Any agreements that are reached by way of ADR should still be incorporated into the parties’ decree of divorce; see 1.1Grounds, Timeline, Service and Process (Uncontested Divorces).

Any further agreements reached outside of a divorce action relating to maintenance should also be made orders of the appropriate court by way of an unopposed application to the relevant court (either the High Court or Maintenance Court), to ensure that the obligations imposed on both parties are enforceable; see 2.7 Enforcement (Failure to Comply With a Financial Order).

The Children’s Courts have jurisdiction to adjudicate a matter when the court is in the area in which the child(ren) involved is ordinarily resident. If the Children’s Court has geographical jurisdiction, it is able to adjudicate a wide scope of matters relating to children, which are set out in Section 45 of the Children’s Act 38 of 2005 and include:

• the protection and well-being of a child;
• the care of or contact with a child;
• the support of a child; and
• the temporary safety of a child.

The High Courts similarly have jurisdiction over matters where the child involved is ordinarily resident within the geographical area of the High Court. The High Court and the Children’s Court have concurrent jurisdiction over a number of issues.

The domicile or nationality of a child who is ordinarily resident in South Africa have no impact on jurisdiction.

Living/Contact Arrangements

If parents are not able to agree on what care and contact arrangements will be in their child’s best interests, and have not been able to resolve this dispute by way of mediation, then an expert will need to be appointed to conduct an investigation into the best interests of the child and to produce a report with recommendations regarding what care and contact arrangements will be in the child’s best interests.

This investigation, referred to as a forensic investigation, can be conducted by the Family Advocate’s Office (at no cost to the parties) or by a psychologist or social worker in private practice. This forensic investigation will take into account the factors set out in Section 7 of the Children’s Act.

If a parent refuses to accept and implement the recommendations made by the appointed expert, the other parent can approach the court to ask for the implementation of the expert’s recommendations in the child’s best interests.

As the upper guardian of minor children, the High Court has jurisdiction over all child-related matters and can make any order in the best interests of the child(ren).

Custody and Parental Responsibility

In terms of Section 18 of the Children’s Act, married parents are co-holders of full parental responsibilities and rights in respect of a child, including the responsibility and right to:

• care for the child;
• maintain contact with the child;
• act as guardian of the child; and
• contribute to the maintenance of the child.

A biological mother of a child, whether married or unmarried, has full parental responsibilities and rights, as set out in Section 19 of the Children’s Act. An unmarried father, on the other hand, does not automatically acquire full parental responsibilities and rights, only acquiring such rights in the following circumstances:

• if at the time of the child’s birth he was living with the mother in a permanent life-partnership; or
• if he consents to be identified as the child’s father or pays damages in terms of customary law, contributes or has attempted to contribute in good faith to the child’s upbringing for a reasonable period, and contributes or has attempted to contribute towards expenses in connection with the maintenance of the child for a reasonable period.

As stated above, if parents are not able to agree on what care and contact arrangements will be in their child’s best interests, then a forensic investigation will be conducted, and the expert's report together with their recommendations will be placed before the court and considered be the court when making its decision.

Restrictions on Court’s Ability to Make Orders on Living and Contact Arrangements

A court can make any order as to the child’s living and contact arrangements, but must be satisfied that the care and contact arrangements are in the child’s best interest, having regard to the factors set out in Section 7 of the Children’s Act. Any settlement agreement concluded between parties where minor children are involved must be sent to the Family Advocate’s office for endorsement.

Section 6 of the Divorce Act regulates the safeguarding of interests of minor and dependent children, and states that a decree of divorce will not be issued until the court is satisfied that proper provision was made for the welfare of any minor or dependent child of the marriage.

Child Maintenance

Child maintenance refers to a child’s direct and indirect reasonable monthly expenses.

Section 15 (2) of the Maintenance Act 99 of 1998 states that maintenance extends to “such support as a child reasonably requires for his or her proper living and upbringing, and includes the provision of food, clothing, accommodation, medical care and education”.

Calculating child maintenance

Parents have a responsibility to contribute to the maintenance of a child until such time as the child is self-supporting. Child maintenance is calculated pro rata according to the parents’ means.

The first step is to quantify the child’s reasonable monthly expenses, considering both direct expenses (educational costs, extra-murals and the child’s medical aid portion, etc) and indirect expenses (day-to-day living expenses, accommodation, etc). Indirect expenses are generally apportioned according to the principle of two parts per adult, one part per child, but there are instances where expenses are split equally between the parent(s) and the child.

The second step is to determine the parents’ respective means, which includes a party’s income and their net asset base. Thereafter, it is a simple mathematical calculation and the child’s monthly maintenance will be apportioned between the parents’ pro rata according to their means.

Agreement on child maintenance

Parties can agree on the child maintenance payable directly between themselves, with the assistance and intervention of their respective legal representatives, or they can enter into mediation with the aim of amicably resolving this aspect.

Once the parties have reached an agreement, they will enter into a comprehensive settlement agreement, to be made an order of court, dealing with all aspects of their divorce, or they can enter into a parenting plan as envisaged in Section 33 of the Children’s Act. This parenting plan can either be registered with the Family Advocate’s office or it can be made an order of court.

Court orders in relation to child maintenance

The court (ie, the High Court, Regional Court or Maintenance Court) can make orders in relation to child maintenance upon the application of either party or upon an application of a major dependent child against a parent.

Child Application for Financial Provision

A parent will claim maintenance on behalf of a minor child (a person under the age of 18 years). However, once a child has attained the age of majority (ie, 18 years of age), the major dependent child will have locus standi and can institute maintenance proceedings directly against a parent.

Parallel Parenting, Major Decisions and the Court’s Power

Section 30(2) of the Children’s Act allows co-holders of parental responsibilities and rights in respect of a child to act without the consent of the other co-holder when exercising their parental responsibilities and rights, except where they are precluded from doing so in terms of the Act, another law or court order. This allows for “parallel parenting”.

Section 31 of the Children’s Act relates to major decisions taken by a co-holder of parental responsibilities in respect of a child. It provides that due consideration must be given to the views and wishes of the child (bearing in mind the child’s age, maturity and stage of development) as well as the views and wishes of any other co-holders of parental responsibilities and rights before any major decision is taken.

The Act defines major decisions as those:

• relating to consent to a child’s marriage, adoption, departure or removable from South Africa, the application for a passport and alienation or encumbrance of immovable property owned by the child;
• affecting contact between the child and a co-holder of parental responsibilities and rights;
• relating to the assignment of guardianship or care to another person; or
• that are likely to significantly change or have an adverse effect on the child’s living conditions, education, health or personal relations with a parent or family member or, generally, the child’s well-being.

In effect, parents are required to consult one another and obtain the other parent's views and wishes before making a major decision. If a dispute arises that cannot be resolved through mediation (or facilitation by a court-appointed parenting co-ordinator in some high conflict matters), the aggrieved party is entitled to approach the High Court (the upper guardian of all minor children in South Africa) for the appropriate relief (eg, dispensing with the requirement that the other parent provides the requisite consent for international travel, directing which school a child should attend, or what medical treatment a child should undergo).

When making a ruling, the court will have regard to any expert report that has been filed. If no such report has been filed, the court may exercise its discretion and order the appointment of a suitable expert to produce a report with recommendations to the court.

Parental Alienation

Parental alienation has been recognised by South African courts and is considered as a form of child abuse. Cases of such a nature are handled with extreme caution and urgency.

In terms of the South African Constitution and the Children’s Act, a child’s best interests are of paramount importance in every matter concerning the child. When dealing with parental alienation, the court will require the evidence of an expert psychologist with qualifications and experience in parental alienation. This expert will conduct a full investigation into the child’s circumstances, including the family dynamics, and produce a report to the court with recommendations.

In matters relating to parental alienation, the court may make the following orders following the expert’s recommendations:

• the appointment of a play therapist or personal therapist for the child;
• the appointment of a reunification therapist to assist in remediating the relationship between the parent and alienated child;
• the appointment of a parental co-ordinator or facilitator to assist the parents in navigating disputes in a more conciliatory and constructive manner;
• the appointment of a curator ad litem (who is normally an attorney or advocate) who has specific powers to investigate the matter and furnish a report and recommendations to the court; or
• in cases of severe alienation, the court will make a protective separation order and remove the child from the alienating parent for a period pending the above-mentioned therapeutical interventions.

Children Giving Evidence in Court

The Children’s Act requires that, taking into consideration their age, stage of development and level of maturity, the child concerned must, where appropriate, be informed of any action or decision taking in a matter concerning them and that affects them, and should be afforded an opportunity to participate in an appropriate manner and express their views and wishes.

Although it is not unheard of, children are not ordinarily called upon to give evidence at court insofar as possible. Legal practitioners and parents are encouraged to shield children from the acrimony of litigation, and their views and wishes are normally presented by way of a report from an appointed psychologist or social worker pursuant to an investigation, or alternatively by way of a child participation interview. In some instances, a child may have an appointed legal representative to represent them in proceedings or be interviewed by a curator ad litem, who will make submissions to court on the child’s behalf.

When utilising ADR in matters concerning children, it is important that the practitioner/mediator is suitably qualified and experienced in dealing with children in an appropriate manner, so as to elicit their views and wishes in a child-friendly manner as envisaged in the Children’s Act.

Please see 2.9 Alternative Dispute Resolution (ADR) as the same mechanisms apply.

The reporting of child cases is governed by various laws and regulations, including the Children's Act 38 of 2005, the Child Justice Act 75 of 2008 and the Criminal Procedure Act 51 of 1977. No information may be reported that would lead to the identification of a minor child.

Divorce cases may not be reported on in a manner that in any way identifies the parties, but the media may report on the facts of a case.

Children’s Court matters are held in camera, and all divorce judgments are now anonymised.