Divorce in South Africa: Grounds, Process and Property (2026)

Divorce in South Africa ends a marriage through a court order, on one of a small number of legal grounds, with specific rules protecting any children of the marriage and dividing matrimonial property.

Information last verified on 23 July 2026. This page provides general legal information about South African divorce law and does not constitute legal advice in an individual case.

Grounds for Divorce

Section 3 of the Divorce Act 70 of 1979 limits divorce to two grounds: the irretrievable breakdown of the marriage, and the mental illness or continuous unconsciousness of one spouse.

The irretrievable breakdown ground, in section 4, requires the court to be satisfied that the marriage relationship has reached a state of disintegration with no reasonable prospect of restoring a normal marriage relationship. Section 4(2) lists non exhaustive examples of what can support this: the parties have not lived together as spouses for a continuous period of at least a year immediately before the divorce action started, the defendant has committed adultery and the plaintiff finds this irreconcilable with continuing the marriage, or the defendant has been declared a habitual criminal and is serving a sentence of imprisonment. The court can postpone proceedings if there is a reasonable possibility the parties will reconcile.

The mental illness or continuous unconsciousness ground, in section 5, is narrower and requires medical evidence. For mental illness, the defendant must have been detained continuously for at least two years under mental health legislation, without being unconditionally discharged, with evidence from at least two psychiatrists, one appointed by the court, that there is no reasonable prospect of a cure. For continuous unconsciousness, the requirement is at least six months of continuous unconsciousness, with evidence from two medical practitioners, one a neurologist or neurosurgeon appointed by the court, that there is no reasonable prospect of the defendant regaining consciousness.

Venue: Regional Court or High Court

A divorce action can be brought in a Regional Court, which the Magistrates' Courts Act gives the same jurisdiction as the High Court specifically for a divorce matter, or in the High Court itself. Both routes lead to the same substantive outcome; which one is used depends on practical factors such as where the parties live and the complexity of the property issues involved.

Protecting Children Before a Decree Is Granted

Section 6 stops a court from granting a decree of divorce until it is satisfied that the arrangements made, or proposed, for the welfare of any minor or dependent child of the marriage are satisfactory, or the best that can be achieved in the circumstances. This safeguard now expressly extends to a minor or dependent child of a Muslim marriage. The Office of the Family Advocate assists the court in assessing this, and its services to the public are free of charge; parties may still need to pay for additional expert reports, such as a psychological evaluation, where these are needed to determine a child's best interests. See child custody, care and contact for how parental responsibilities and rights are worked out.

Maintenance and Property on Divorce

Where the parties reach a written settlement agreement, section 7 lets the court make an order in line with it, covering maintenance and the division of assets. Absent an agreement, the court decides based on factors including each party's existing and prospective means, earning capacity, financial needs and obligations, age, the duration of the marriage, the standard of living during the marriage, and conduct relevant to the breakdown of the marriage. A maintenance order made this way generally runs until the death or remarriage of the party receiving it, whichever happens first.

Section 9 lets a court order the forfeiture, wholly or in part, of the patrimonial benefits of the marriage, having regard to the duration of the marriage, the circumstances leading to its breakdown, and any substantial misconduct by either party, where the court is satisfied one party would otherwise be unduly benefited. No forfeiture order can be made against a defendant where the divorce was granted on the mental illness or continuous unconsciousness ground.

Matrimonial Property Regimes

How property is divided depends on which regime governs the marriage:

• In community of property: the general default where the spouses did not sign an antenuptial contract before marrying, meaning both estates are combined into one joint estate.
• Out of community of property, without accrual: where an antenuptial contract expressly excludes both community of property and the accrual system.
• Out of community of property, with accrual: the default position for an antenuptial contract entered into after 1 November 1984, unless the contract expressly excludes the accrual system (section 2 of the Matrimonial Property Act 88 of 1984). On divorce, the spouse whose estate shows no accrual, or a smaller accrual than the other spouse's estate, has a claim against the other spouse for an amount equal to half the difference between the accrual of the two estates (section 3).

Muslim Marriages: Now Fully Covered

Muslim marriages that had not been registered as civil marriages sat outside the Divorce Act's protections for years. In Women's Legal Centre Trust v President of the Republic of South Africa and Others, decided 28 June 2022, the Constitutional Court declared the Marriage Act and the Divorce Act unconstitutional to the extent that they failed to recognise Muslim marriages and regulate the consequences of that recognition, including the section 6 child-welfare safeguard, section 7(3) asset redistribution, and section 9 forfeiture. The court suspended its declaration of invalidity for 24 months to give Parliament time to legislate, while providing interim relief for Muslim marriages subsisting as at 15 December 2014.

The Divorce Amendment Act 1 of 2024 answered that ruling. It inserted a definition of 'Muslim marriage', extended the grounds for divorce, the child-welfare safeguard, and the forfeiture provision to Muslim marriages, and added a new section 7(3A) asset-transfer order specific to Muslim marriages. These changes came into force on 14 May 2024, ahead of the Constitutional Court's deadline. They apply to all subsisting Muslim marriages, including a marriage that subsisted as at 15 December 2014 and one already dissolved under Islamic law where court proceedings are still unfinished.

Related Reading

For the process of claiming or paying maintenance, whether during a marriage or after divorce, see Maintenance Court. For how parental responsibilities and rights are decided for a child once a marriage ends, see child custody, care and contact. If there is abuse in the relationship, see protection orders. The South Africa family law section and the South Africa Laws hub link the wider site.

This guide is general legal information, not legal advice. For advice on your own situation, consult an attorney, or contact Legal Aid South Africa (0800 110 110) if you cannot afford one.

Frequently Asked Questions

What are the grounds for divorce in South Africa?

The irretrievable breakdown of the marriage, or the mental illness or continuous unconsciousness of one spouse, under sections 3 to 5 of the Divorce Act. Irretrievable breakdown is the ground used in almost all cases.

Which court handles a divorce in South Africa?

A Regional Court, which has the same jurisdiction as the High Court for divorce matters, or the High Court itself.

What happens to property when a couple divorces in South Africa?

It depends on the marriage regime: in community of property (the general default without an antenuptial contract), out of community without accrual, or out of community with accrual, which is the default for antenuptial contracts since 1 November 1984 and gives the spouse with the smaller accrual a claim for half the difference between the two estates.

Can a court refuse to grant a divorce if there are children?

A court will not grant a decree until it is satisfied the arrangements for the welfare of a minor or dependent child are satisfactory, or the best available in the circumstances, under section 6 of the Divorce Act.

Are Muslim marriages recognised for divorce in South Africa?

Yes, since the Divorce Amendment Act 1 of 2024 came into force on 14 May 2024. It followed a 2022 Constitutional Court ruling and extends the Divorce Act's grounds, child-welfare safeguard, asset division and forfeiture provisions to all subsisting Muslim marriages, including those subsisting as at 15 December 2014.

Is the Family Advocate free to use in a divorce?

Yes. The Office of the Family Advocate renders its services to the public free of charge, though a party may still need to pay for additional expert reports, such as a psychological evaluation, where these are needed.