South Africa
South Africa Family Law: Maintenance, Divorce, Children and Protection Orders (2026)
Independently fact-checked against primary sources (last audited July 23, 2026). · 7 primary sources cited on this page. How we verify our legal content
South African family law covers four areas most people search for separately: getting or paying maintenance, ending a marriage, working out where a child lives and who decides for them, and getting protection from an abusive partner or family member. This section maps how each of those processes works and where to find the full guide.
Information last verified on 23 July 2026. This page provides general legal information about South African family law and does not constitute legal advice in an individual case.
Maintenance Courts
A claim for maintenance, whether for a child or a spouse, is not brought directly to a judge. It starts with a complaint to a maintenance officer at the Maintenance Court in the area where the person to be maintained lives, works or carries on business (section 6(2) of the Maintenance Act 99 of 1998). The maintenance officer investigates the complaint, including the other party's income and assets, before the matter reaches a formal enquiry in front of a magistrate. The full process, including enforcement once an order is made, is covered on the Maintenance Court page.
Divorce Venues and Grounds
A divorce action can be brought in a Regional Court, which has been given the same jurisdiction as the High Court specifically for divorce matters, or in the High Court itself. The only grounds for divorce are the irretrievable breakdown of the marriage, or the mental illness or continuous unconsciousness of one spouse, under the Divorce Act 70 of 1979. Since 14 May 2024, the Divorce Amendment Act 1 of 2024 extends these grounds, and the related protections for children and property, to Muslim marriages. See the divorce page for the full process, including how property is divided.
Parental Responsibilities and Rights
The Children's Act 38 of 2005 replaced 'custody' and 'access' with 'parental responsibilities and rights': the right and responsibility to care for a child, to maintain contact with a child, to act as guardian, and to contribute to a child's maintenance (section 18). A biological mother has full parental responsibilities and rights automatically. A biological father has them automatically if he is married to the mother, or was married to her at conception, at birth, or any time in between; a father who was never married to the mother acquires them either by living with the mother in a permanent life partnership at the time of birth, or by meeting three separate conditions relating to identification, upbringing and maintenance contributions. See the child custody, care and contact page for the detail.
Protection Orders
Where there is abuse in a domestic relationship, broadly defined to include spouses, partners, family members and people who share a household, the Domestic Violence Act 116 of 1998 lets a complainant apply to the Magistrates' Court nearest to where they live or work for a protection order, free of charge. Since 14 April 2023, the Domestic Violence Amendment Act 14 of 2021 has broadened the categories of abuse the Act covers, including coercive and controlling behaviour, elder abuse and abuse of a related person, not just the complainant. Where the relationship falls outside the Act's definition, the Protection from Harassment Act 17 of 2011 offers a separate, relationship-neutral remedy. See the protection orders page for both routes.
What Is in This Section
- Maintenance Court: How to Apply and Enforce: the complaint, investigation, enquiry and order process, and how an unpaid order is enforced.
- Divorce in South Africa: Grounds, Process, Property: grounds, venue, the child-welfare safeguard, and how property is divided.
- Child Custody (Care and Contact) Explained: parental responsibilities and rights, automatic and acquired, and parenting plans.
- Protection Orders: Domestic Violence and Harassment: how to apply, what counts as abuse, and the non-domestic alternative.
- Customary Marriage: validity, registration, and the property consequences under the amended Act.
- Antenuptial Contracts: the accrual system, the formalities, and the deadlines.
For the wider South Africa hub, including labour, traffic, criminal records and privacy law, see South Africa Laws.
This page is general legal information about South African law and is not legal advice. For advice on a specific situation, consult an attorney, or contact Legal Aid South Africa on 0800 110 110 if you cannot afford one.
Frequently Asked Questions
Which court handles maintenance claims in South Africa?
The Maintenance Court, which sits inside the Magistrates' Court. A claim starts as a complaint to a maintenance officer, who investigates before the matter reaches a formal enquiry before a magistrate.
Which court handles divorce in South Africa?
Either a Regional Court or the High Court: the Regional Court has been given the same jurisdiction as the High Court specifically for divorce matters, and which venue is used in practice depends on factors such as where the parties live and the complexity of the property issues involved.
What replaced 'custody' and 'access' in South African law?
The Children's Act 38 of 2005 uses 'parental responsibilities and rights', covering care, contact, guardianship and contributing to a child's maintenance. Many people still search using the older terms.
Do these areas of family law ever overlap in one situation?
Often. A protection order can run alongside a maintenance claim or a divorce, and a divorce action itself cannot be finalised until arrangements for any minor or dependent child, covered under parental responsibilities and rights, are addressed. Each guide in this section explains its own process, but the underlying facts of a single family situation frequently touch more than one of them.
What if my situation does not fit the Domestic Violence Act's definition of a domestic relationship?
The Protection from Harassment Act 17 of 2011 offers a separate remedy that applies regardless of the relationship between the parties.
Updates
Independently fact-checked against the cited primary sources
Sources and References
- Maintenance Act 99 of 1998, sections 6, 7 and 16 (complaint, investigation and enquiry process)(justice.gov.za).gov
- Divorce Act 70 of 1979, section 1 (definition of 'court', including a Regional Court's concurrent jurisdiction with the High Court)(justice.gov.za).gov
- Children's Act 38 of 2005, section 18 (parental responsibilities and rights: care, contact, guardianship and maintenance)(justice.gov.za).gov
- Domestic Violence Amendment Act 14 of 2021, section 1 (broadened categories of domestic violence, inserted into the Domestic Violence Act 116 of 1998)(justice.gov.za).gov
- Department of Justice and Constitutional Development, applying for a protection order(justice.gov.za).gov
- Department of Justice and Constitutional Development, applying for maintenance(justice.gov.za).gov
- Magistrates' Courts Act 32 of 1944, section 29(1B) (Regional Court jurisdiction over divorce actions)(justice.gov.za).gov