Family Law 2025 Comparisons

Grounds for Divorce

In South Africa, there is a “no fault” divorce system. The grounds for divorce apply to all marital relationships, including monogamous heterosexual marriages, monogamous same-sex marriages, and both monogamous and polygamous marriages recognised under African custom.

The Divorce Act 70 of 1987 (the “Divorce Act”) provides the following two no-fault grounds for divorce.

• Irretrievable breakdown of the marriage relationship (Section 4) – the court must determine on evidence that the relationship has deteriorated to a point where restoration is no longer possible.
• Mental illness or continuous unconsciousness of one spouse (Section 5) – there must be no reasonable prospect of recovery.

Service, Process and Timeline in Obtaining a Decree of Divorce

A period of separation is not a legal prerequisite for filing for divorce. However, if the parties have been separated for at least a year before initiating proceedings, this serves as rebuttable evidence of an irretrievable breakdown (Section 4(2)(a) of the Divorce Act).

The procedure to be followed and the timeline to finalise a divorce vary depending on whether the divorce is unopposed (uncontested) or opposed (contested). In both cases, one spouse (the plaintiff) initiates the process by serving a combined summons on the other spouse (the defendant). This document must be personally delivered by a sheriff of the High Court. Subsequent documents need not be served by the sheriff.

If the defendant resides outside South Africa, the plaintiff must bring an application to court for consent to serve the summons outside the country by way of edictal citation. If the defendant’s whereabouts are unknown and all reasonable efforts to locate them have failed, the court may authorise alternative methods of service (eg, email or WhatsApp), pursuant to an application to court for substituted service.

After the summons has been served, the defendant has ten court days to notify the court and plaintiff of their intention to defend the divorce if both parties live within the court’s jurisdiction, or one month if the defendant resides outside the jurisdiction.

Uncontested Divorces

When the plaintiff and defendant have entered into a settlement agreement prior to the divorce summons being issued, the divorce action will proceed on an unopposed basis and a decree of divorce will be granted incorporating the settlement agreement.

If a summons is issued (with or without a settlement agreement having been reached) and the defendant does not defend the action within the allowed time and proper service is proven, the plaintiff can request a court hearing for a decree of divorce to be granted by default. The court will grant a divorce order if it is satisfied that:

• the grounds for divorce have been met;
• the summons was properly served on the defendant; and
• the defendant had adequate time to file an intention to defend the action.

Divorces that proceed on an unopposed basis can be finalised within three to four months from the date the summons is issued.

Contested Divorces

Contested divorces generally follow four stages:

• pleadings;
• discovery;
• pre-trial; and
• trial.

Pleadings

After notifying their intention to oppose, the defendant has 20 court days to file their plea and counterclaim. The plaintiff then has 15 court days to respond. Pleadings close thereafter. In certain jurisdictions, such as Gauteng, comprehensive financial disclosure forms must be submitted after pleadings have closed in instances where the disputes include maintenance or proprietary aspects of the divorce.

Discovery

Both parties must disclose the relevant documents they plan to rely on during the trial. Parties exchange discovery notices (calling for the other to disclose the documents they seek to rely on) and submit sworn discovery affidavits under cover of which they disclose such documents, and may request additional documentation. Experts may also be engaged, and witnesses subpoenaed.

Pre-trial

Pre-trial conferences aim to resolve as many issues as possible before the trial and finalise practical arrangements between the opposing attorneys and counsel. Once all pre-trial steps are complete, the matter is certified as trial-ready.

Trial

After certification, the court schedules a trial date. While strict compliance with rules could make cases trial-ready within 12 months, the allocation of the trial date is at the court’s discretion and is influenced by a number of factors, including the number of matters enrolled and the availability of judges.

The above process pertains to High Court divorce proceedings. Regional courts can also hear divorce cases, but different procedural rules and directives apply.

Religious Marriages

Historically, religious marriages (such as Muslim and Hindu) were not recognised in South Africa. However, this has changed following the decision in Women’s Legal Centre Trust v President of the Republic of South Africa and Others (2022) ZACC 23, in which the court declared parts of the Marriage Act and Divorce Act unconstitutional for excluding Muslim marriages. Marriages that are concluded according to Islamic rites are now recognised.

Void and Voidable Marriages

A void marriage fails to meet the requirements for a civil marriage as set out in the Marriages Act 25 of 1961 and is considered non-existent, with no legal consequences.

A voidable marriage is valid until set aside by a court owing to specific legal grounds present at the time of the marriage.

Requirements for a valid marriage include:

• solemnisation by an authorised marriage officer;
• the presence of both parties during the ceremony (proxy marriages are not allowed);
• the absence of prohibited blood relationships; and
• legal capacity of both parties.

In terms of Section 2(1) of the Divorce Act, a court has jurisdiction over a divorce if one or both parties are:

• domiciled in the court’s jurisdiction on the date the divorce is initiated; or
• ordinarily resident in the court’s jurisdiction and have resided in South Africa for at least one year prior to filing.

If jurisdiction is disputed by the defendant, the court may consider:

• whether the matter involves the same cause of action as a matter pending in another jurisdiction (lis alibi pendens) and, if so, which jurisdiction is more appropriate (forum conveniens); and
• relevant facts of the matter at hand, such as:
1. applicable foreign law;
2. the location of evidence, children and assets;
3. procedural advantages or prejudice; and
4. costs and timelines in different jurisdictions.

Domicile, Residence and Nationality

Domicile refers to a person’s intended permanent home. South Africa uses the lex domicilii matrimonii principle to determine marital property laws – ie, the proprietary consequences of the marriage are governed by the laws of the husband’s domicile at the time the marriage was concluded. This principle will likely be overturned if an appropriate case tests the constitutional validity of the principle.

Residence refers to where an individual ordinarily lives. It is used to determine jurisdiction.

Nationality refers to the legal belonging to a nation state. However, it does not impact jurisdiction in South African divorce cases if legal requirements are met.

Jurisdiction in Financial Proceedings

In South African divorce cases, all financial claims between the parties are resolved as part of the divorce action. Financial claims are not dealt with separately except in certain rare cases, by order of court. For details on jurisdiction, please see 1.2 Choice of Jurisdiction.

Challenging Jurisdiction

Jurisdiction in divorce proceedings can be contested if the requirements outlined in Section 2(1) of the Divorce Act are not met. For further information, see 1.2 Choice of Jurisdiction.

Staying Financial Proceedings

South African courts have discretionary authority to suspend ongoing proceedings before them (for instance, if the matter is being dealt with before another court). For further details, please see 1.2 Choice of Jurisdiction.

Financial Claims After a Foreign Divorce

In South Africa, there is no mechanism for initiating financial claims after a foreign divorce (akin to English Part III proceedings), unless a particular term in a foreign order needs to be recognised and enforced within the country, or if there are allegations of fraud, mistake or undue influence (ie, common law grounds for setting aside an agreement). However, claims for child maintenance or a variation of spousal maintenance may be pursued in South Africa following a foreign divorce, as the courts have jurisdiction over any child within the country's borders.

As outlined in 2.1 Choice of Jurisdiction, South African courts address financial claims as part of the divorce action. For additional details, please see 1.1 Grounds, Timeline, Service and Process.

During a divorce action, a party may request an interim court order for the following by launching an application in terms of Rule 43 of the Uniform Rules of Court:

• maintenance (for themselves and/or the children);
• contact arrangements with the children; or
• a contribution towards their legal costs.

Court’s Approach to Division of Assets

The first consideration when determining a division of assets is which matrimonial property regime governs the proprietary consequences of the parties’ marriage. In South Africa, the default matrimonial property regime (ie, in the absence of a prenuptial contract) is currently a universal community of property. This does not apply to Islamic marriages, in which there is instead a right to an equitable redistribution of assets.

In a marriage in community of property, the net joint estate (which includes all assets in both parties’ name, including premarital assets) is automatically divided equally between the parties, unless a forfeiture order is made in limited circumstances.

Where the parties have a South African prenuptial contract out of community of property incorporating the accrual system, the party whose estate has accrued (grown) less during the marriage compared to other spouse’s estate has a claim to half the difference in the spouses’ respective accruals (unless forfeiture is ordered in limited circumstances).

Where parties have a South African prenuptial contract out of community of property without the application of the accrual system, each party retains assets in their own names – unless the court makes an order for the redistribution of certain assets, having regard to a number of factors.

If the proprietary consequences of the marriage are governed by the laws of another country, the South African courts apply that particular country’s laws to the division of assets, as if the divorce were being heard in that country. Therefore, expert evidence about the applicable law will be necessary. 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 regarding this, the court has the authority to make an order regarding:

• the payment of maintenance for any period;
• the transfer of assets;
• lump sum payments;
• periodic payments; and/or
• the transfer of pension interests.

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

During litigation, parties are required to make full financial disclosure to one another and the court. In Gauteng and Limpopo, this initially occurs by way of a detailed Financial Disclosure Form, which is signed under oath and is subject to penalties for perjury. Specified supporting documents are required to be provided with this form. Other provinces in South Africa are in the process of considering and implementing the Financial Disclosure Form.

The parties can also make use of the Uniform Rules of Court, which provide for extensive discovery under oath, specific documents to be called for, and the power to subpoena documents and call witnesses. Subpoenas are commonly used to procure documents and information from banks, employers and relevant companies and trusts, but cannot be issued on foreign entities or individuals other than by way of special procedures, which can be costly and take a long time.

Property Regimes and the Division of Assets

In South Africa, there are two primary matrimonial property systems: marriages in community of property and marriages out of community of property.

As stated above, “community of property” (universal community) is the default system for civil marriages in South Africa. Under this system, a “joint estate” is created where all the assets of both parties are combined and the parties are jointly responsible for the liabilities of the other.

Marriages “out of community of property” are established by entering into a prenuptial agreement. These marriages have a complete separation of property during the marriage, and parties can administer their own estates as they deem fit. The accrual system will automatically apply to all marriages out of community of property, unless the parties have expressly excluded its application in their prenuptial agreement. Under the accrual system, the increase in value of each party’s estate (with a few exceptions) is shared upon the dissolution of the marriage by death or divorce.

Parties may also set commencement values and/or exclude specific assets from the accrual system in their prenuptial agreement.

In marriages 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, to prevent unfairness.

Trusts

Trusts are separate legal entities recognised in South Africa. Trust property is held by the trustees according to the terms of the trust deed. The trustees are responsible for managing the trust property for the benefit of beneficiaries, whether individuals or entities.

Trust property is not, in the ordinary course, considered part of a person’s estate in divorce proceedings. If it can be proven that the trust is the “alter ego” of one or more of the trustees, or that the trust is a sham, and that a party transferred assets into the trust during the marriage in a bad faith attempt to deprive the spouse of their legitimate claims on divorce, then the trust property could be considered to be 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 high for parties seeking to include trust assets in divorces.

Attitudes Towards Spousal Maintenance

During a marriage, parties have a reciprocal duty to support one another. However, 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). Accordingly, there is no automatic right to spousal maintenance post-divorce.

Parties may agree to the payment of maintenance by one party to another post-divorce. If there is no agreement, a court granting a decree of divorce has the discretion to make an order for spousal maintenance post-divorce. The party who has a need for maintenance must bring such a claim in the divorce action in terms of Section 7(2) of the Divorce Act. This section provides that a court granting a divorce may make an order for the payment of maintenance 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 that gave rise to the breakdown of the relationship;
• the age of the parties; and
• the respective earning capacities of the parties.

Spousal maintenance post-divorce 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 may have a maintenance claim in terms of the Maintenance of Surviving Spouses Act 27 of 1990.

Interim Maintenance

There is a reciprocal duty of support between spouses throughout the marriage (stante matrimonio), meaning that a party is not entitled to change the status quo in respect of maintenance pending divorce.

If a party changes the status quo, or if a party requires interim maintenance during the course of the divorce litigation, that party may bring an application in terms of Uniform Rule 43 for an order for the payment of maintenance. A court order in such an application will remain in place until the finalisation of the divorce action. A litigating party may also utilise Uniform Rule 43 to claim a contribution towards their legal costs, in order to put the parties on an equal footing. This is also considered a form of maintenance.

Ongoing Maintenance

The court has the discretion to make any order for maintenance that it finds to be just and equitable. There are no restrictions in respect of the duration or quantum of maintenance. Maintenance orders can be made for a period of time, for the remainder of an ex-spouse’s 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 means of the party paying the maintenance.

Prenuptial and postnuptial agreements are both recognised in South Africa.

Prenuptial Agreements

Prenuptial agreements are drafted in accordance with the Matrimonial Property Act 88 of 1984 (MPA). A prenuptial contract must be entered into by the parties before they enter into a marriage and must be signed before a notary public. The prenuptial contract is 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 agreements are regulated by Section 21 of the MPA, which allows parties to jointly apply to a court for leave to change the matrimonial property regime 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 that 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 invalid. There is proposed legislation in the pipeline which will change this.

Court Handling of Prenuptial and Postnuptial Agreements

In considering the division of assets on divorce, a court will first consider the matrimonial property regime that governs the parties’ marriage. 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 agreed to otherwise between the parties).

In certain instances, parties may have claims that 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.

Unmarried Couples and the Division of Assets

There is currently no legal duty of support for unmarried cohabitants in South Africa, either during the cohabitation or after the cohabitation ends. Accordingly, a cohabitant partner does not have a right to claim maintenance upon the termination of the relationship. Similarly, cohabitantsdo not have an automatic claim to the assets of their partner at the end of the relationship. Cohabiting parties will retain all assets in their respective names at the termination of the relationship, and there is no “asset sharing”.

In certain circumstances, however, the common law rules governing universal partnerships may assist cohabitant partners by providing them with a legal claim. A universal partnership is a contract (which may be express or tacit, verbal or written) in which the cohabitants agree that their property will be shared between them. 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.

Rights of Cohabitants

Cohabiting partners do not acquire any rights or financial claims against their partner’s assets by virtue of a cohabitation relationship. There is no provision for a claim for maintenance or a sharing of assets (“a financial claim”). This is the position regardless of the length of the cohabitation or whether the parties have children. There is no principle of a “common law marriage” in South Africa, and the duration of cohabitation does not influence a party’s position for a financial claim.

Pursuant to a case in which the right to maintenance was awarded to a cohabitant whose partner had died, it is likely that the law will be varied in due course in relation to cohabitation, so that maintenance rights will be extended to cohabiting partners in certain circumstances.

If partners in a cohabitation relationship have children, this similarly does not impact their rights or legal claims as a partner. The only claims that 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 into – or during – 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, as explained in 2.3 Division of Assets. These orders can be granted by South African High Courts or regional (lower) 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) or 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 at auction.

Emoluments attachment order

The second method of enforcement is an emoluments attachment order. In this instance, a 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 in 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-mentioned 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. This is only possible for maintenance orders.

Contempt of court order

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. This is only applicable to orders for the payment of maintenance, and not to orders for payment of a capital amount. 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 specific terms of such an order without prior steps being taken (albeit that the parties will be recognised to be divorced).

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, representatives of the media have the right to attend court proceedings for the purposes of reporting on such proceedings, unless specifically provided otherwise by law. 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 in South Africa, and the South Africa Law Reform Commission (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, in terms of Uniform Rule 41A, litigants instituting an action or application must, at the outset, confirm whether or not they agree to the referral of the dispute to mediation and provide reasons for their position. 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.

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 the maintenance court), to ensure that the obligations imposed on both parties are enforceable.

Children’s courts have jurisdiction to adjudicate a matter when the court is in the area in which the child involved is ordinarily resident or, if more than one child is involved, the court of the area in which any of those children are ordinarily resident (Section 44 of the Children’s Act 38 of 2005). 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 and include:

• the protection and well-being of a child;
• the care of or contact with a child;
• guardianship of a child;
• the support of a child;
• the temporary safety of a child; and
• the adoption of a child, including an inter-country adoption.

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 courts have concurrent jurisdiction over a number of issues, including guardianship of a child.

The domicile or nationality of a child who is ordinarily resident in South Africa has 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. This expert will produce a report with recommendations regarding what care and contact arrangements will be in the child’s best interests.

This forensic investigation can be conducted by the family advocate’s office (at no cost to the parties) or – if the parties have the means – 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 one parent disagrees with and 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.

The courts prefer a single joint expert to be appointed, but parties are entitled to appoint their own experts should they so wish. The experts’ duty, however, is to the court, and not to either of the parties.

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), whether in accordance with the expert’s recommendations or not.

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, only acquires full parental responsibilities and 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 and 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.

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 shall not be granted unless the court is satisfied that 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 [their] proper living and upbringing, and includes the provision of food, clothing, accommodation, medical care and education”.

Calculating child maintenance

Every parent has a responsibility to contribute to the maintenance of the child. Child maintenance is calculated pro rata according to the parents’ means. There is no set formula for child maintenance in South Africa, unlike in many other jurisdictions, with each case being dealt with on its own merits.

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. There is often a dispute as to the reasonability of expenses.

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

Agreement on child maintenance

Parties can agree directly between themselves on the child maintenance payable, or with the assistance and intervention of their respective legal representatives, or they can enter into mediation with the aim of amicably resolving this aspect. If they are unable to reach agreement, the matter can be decided by a court.

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). Once a child has attained the age of majority (ie, 18 years of age), the major dependent child may approach the court for a maintenance order for financial support until such time as they are self-supporting. However, a parent has the right (locus standi) to bring a claim on behalf of a major dependent child still living with them.

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 Children’s Act, another law, or court order.

Section 18(3)(c) of the Children’s Act specifies that the following decisions must be made jointly between all persons having guardianship:

• consent to the child’s marriage;
• consent to the child’s adoption;
• consent to the child’s removal from South Africa (be it temporary or permanent);
• consent to the child’s application for a passport; and
• consent to the alienation or encumbrance of any immovable property owned by the child.

Section 31 of the Children’s Act relates to major decisions involving a child, which are not covered by Section 18(3)(c). It provides that due consideration must be given to the views and wishes expressed by the child before a person holding parental responsibilities and rights in respect of said child takes any decision involving the child as set out in Section 31(1)(b), bearing in mind the child’s age, maturity, and stage of development.

Section 31(1)(b) defines these major decisions as those:

• relating to consent to a child’s marriage or adoption, consent to a child’s departure or removal from South Africa, the application for a passport, and alienation or encumbrance of immovable property owned by the child (Section 18(3)(c));
• 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 addition, any co-holder of parental responsibilities and rights (usually the other parents) must be consulted in respect of any decision that is likely to significantly change the co-holder’s exercise of parental responsibilities in respect of the child, or to have a significant adverse effect on the exercise of such responsibilities. A practical example of this would be a decision by one parent to move to another town or province, which would clearly have an adverse effect on the other party’s right to contact.

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 in reaching a decision and/or order the appointment of a suitable expert to produce a report with recommendations to assist the court.

Parental Alienation

Parental alienation is considered a form of child abuse, and cases of such a nature are handled with extreme caution and urgency.

When dealing with parental alienation, the court will require the evidence of an expert psychologist, preferably with 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 their findings and 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 may make a protective separation order and remove the child from the alienating parent for a period pending the above-mentioned therapeutic interventions.

Children Giving Evidence in Court

The Children’s Act requires that the child concerned must, where appropriate, be informed of any action or decision taken in a matter concerning them and that affects them – taking into consideration their age, stage of development and level of maturity – and should be afforded an opportunity to participate in an appropriate manner and express their views and wishes. Children are given a voice but not a choice.

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.

Mechanisms outside the court process that exist to assist parties to resolve financial disputes include mediation, negotiation (facilitated by the legal representatives) and the collaborative law process – which is still relatively unknown to the public and not generally practised.

The Children’s Act expressly provides that parties should adopt a conciliatory and problem-solving approach in all matters relating to children, and avoid a confrontational approach wherever possible.

Mediation is all but mandatory and, in terms of Uniform Rule 41A, litigants instituting an action or application must, at the outset, confirm whether or not they agree to the referral of the dispute to mediation, and provide reasons for their position. Adverse costs orders may be considered in circumstances where one party refuses to engage in mediation prior to trial.

Arbitration in matrimonial matters is still not permissible in terms of Section 2 of the Arbitration Act 49 of 1965, but a long-anticipated amendment to the Arbitration Act is expected, so that divorce matters may be arbitrated by agreement between the parties.

Any agreements that are reached by way of ADR should still be incorporated into the parties’ decree of divorce.

Any further agreements relating to maintenance that are reached outside a divorce action 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.

The media and press are able to report on child cases. However, 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. Nonetheless, the media may report on the facts of a case.

Children’s court matters are held in camera. All divorce judgments are now anonymised, using only the parties’ initials.