SA courts shall have jurisdiction in divorce proceedings if either party is domiciled in the court’s area of jurisdiction, or is ordinarily resident in the area of jurisdiction for at least one year prior to the institution of the divorce action  – S2(1) of the Divorce Act, 70 of 1979.

Nationality is not an independent basis for a SA court to grant a divorce. Domicile and ordinary residence are different concepts. Under the Domicile Act 3 of 1992, domicile of choice generally requires lawful presence in a place together with an intention to settle there indefinitely.

Historically, the laws of the country of the husband’s domicile at the time of marriage determined the proprietary consequences of the marriage, unless a specific selection of law between the parties existed.   S9 of the Divorce Act provides that if the patrimonial consequences of a marriage are governed by the law of a foreign state, the SA court shall have the same power of the competent foreign court to grant an order on divorce to transfer assets between spouses. Recently, the High Court held in N.P. v Minister of Justice and Constitutional Development 2026 ZAWCHC 343, that the rule of lex domicilii matrimonii is unconstitutional as it privileges the husband’s domicile over the wife’s and is unfair discrimination. The Court developed common-law rules to determine the applicable system rather than automatically defaulting to the husband’s domicile. Absent a valid choice of law by the spouses, the proprietary consequences of the marriage are governed, in descending order, by the law of their common domicile, common habitual residence, common nationality, or, failing these, the country with which they were jointly most closely connected at the time of the marriage. The new legal framework applies retrospectively to existing marriages, subject to certain safeguards.

Ordinary residence is assessed factually by reference to a person’s usual residence. Under s2(1)(b), the spouse must ordinarily reside in the relevant area and must also have been ordinarily resident in SA for at least one year before institution. Regional and High Courts may exercise jurisdiction where the statutory test is met.

The court’s jurisdiction to dissolve a marriage is distinguishable from the law governing the spouses’ matrimonial-property regime. A South African court may hear the divorce, however South African law will not necessarily govern every proprietary issue.

Generally, a divorce cannot be granted before associated matters are finalised. However, where only the proprietary consequences are still disputed, on application, a court may grant a separation of issues in terms of Rule 33(4) of the Uniform Rules of Court, which grants a decree of divorce and separates related issues like maintenance, and asset redistribution. S6(1)(a) of the Divorce Act further indicates that a divorce will not be finalised by a court if it is not satisfied that the children’s best interests are safeguarded – the arrangements made for care, contact, and maintenance of any minor children must be satisfactory.

The court should first possess jurisdiction under s2 of the Divorce Act. Jurisdiction cannot be created merely by agreement. If proceedings are also pending abroad, the SA court may consider whether a stay is appropriate, taking account of the connections with each forum and the interests of justice.

To stay local divorce proceedings, the responding party must raise the legal defence of lis alibi pendens. To succeed, they must prove to the court that the foreign litigation is active, involves the exact same parties, and shares the same cause of action and subject matter—namely, the dissolution of the marriage and the division of the marital estate. However, even if these criteria are met, a stay of proceedings is not automatic as SA courts retain overriding judicial discretion based on equity and convenience. Under the principle of forum non conveniens, the judge will evaluate which court was approached first, where the marital assets are physically located, which country serves as the family’s primary domicile, and whether litigating abroad causes severe financial or logistical prejudice to either spouse. Crucially, if children are involved, the court will prioritize whichever forum is best positioned to protect the best interests of the child before deciding whether to stay the SA action.

In O.B v L.B.D.S [2021] ZAWCHC 43, the court considered when divorce proceedings are instituted for purposes of the Divorce Act and noted the issue can be material where competing proceedings are commenced in different countries. The question is whether the South African proceedings should be stayed in favour of a foreign forum that is competent and materially more appropriate, having regard to the whole dispute.

Further relevant considerations may include the spouses’ connections with South Africa and the foreign state; the location of assets, witnesses and relevant evidence; the law likely to govern the matrimonial-property consequences; the children’s habitual residence and their best interests; the stage and progress of the competing proceedings; the risk of inconsistent decisions or duplicative litigation; and whether the foreign court can provide effective and comprehensive relief.

Yes. Applicable law is relevant in South African divorce proceedings involving an international element. It is important to distinguish between the law governing the divorce proceedings themselves and the substantive law governing the matrimonial-property consequences of the marriage.

A South African court that has jurisdiction applies South African procedural law to the proceedings. The Divorce Act 70 of 1979 provides the principal statutory framework for the dissolution of marriage. However, the fact that a South African court hears the divorce does not necessarily mean that South African matrimonial-property law governs the division of the spouses’ assets. That question is determined separately under South African private international law.

Section 2(3) of the Divorce Act is relevant where a South African court has jurisdiction under section 2(1) and the parties are, or either of them is, not domiciled in South Africa. In those circumstances, the court must determine any issue in accordance with the law that would have applied had the parties been domiciled in the area of jurisdiction of that court on the date the divorce action was instituted. The subsection must therefore be read in its statutory context; it does not simply mean that South African substantive law automatically governs every issue in a divorce involving a foreign spouse.

Historically, South African common law applied the lex domicilii matrimonii rule to determine the proprietary consequences of a marriage with an international element. Under this rule, the governing law was the law of the husband’s domicile at the time of the marriage. The rule was associated with Frankel’s Estate v Master 1950 (1) SA 220 (A) and Sperling v Sperling 1975 (3) SA 707 (A). This position was materially changed by N.P. v Minister of Justice and Constitutional Development and Others [2026] ZAWCHC 343, decided on 23 June 2026. The Western Cape High Court declared the husband-domicile rule unconstitutional and invalid and developed a gender-neutral replacement rule.

The new hierarchy is as follows:

1. Choice of law: The spouses may agree, before or at the time of marriage, on the country whose legal system will govern the proprietary consequences of their marriage, provided there is a substantial link or connection between that legal system and one or both spouses.
2. Common domicile: If there is no qualifying agreement, the law of the country in which the spouses shared a common domicile at the time of marriage applies.
3. Common habitual residence: If there was no common domicile, the law of the country of their common habitual residence at the time of marriage applies.
4. Common nationality: If there was no common habitual residence, the law of the country of their common nationality at the time of marriage applies.
5. Closest joint connection: If none of the above identifies a country, the law of the country to which the spouses were jointly and most closely connected at the time of marriage applies.

The judgment does not include the country where the spouses intended to establish their first matrimonial home as a separate step in this hierarchy. The judgment also provides transitional arrangements. In particular, where the spouses selected a governing law in an antenuptial contract, the new rule does not apply for two years from 23 June 2026, allowing time for the contract to be amended. Where no governing law was selected, the new rule applies unless this would cause substantial prejudice. The order also protects certain steps, decisions and transactions already taken under the former rule, and does not apply to marriages dissolved by death or divorce before the judgment.

It is important to note that the N.P. case is a Western Cape High Court judgment, not a Constitutional Court judgment. Its precedential status outside that division should be described accurately, and any appeal or subsequent higher-court treatment should be checked before relying on it in a live matter.

Antenuptial contracts remain important. They may record the spouses’ chosen matrimonial-property regime and, in an international marriage, may contain a choice of governing law. Following the N.P. case, a choice made before or at the time of marriage is recognised under the new common-law rule only where there is a substantial link or connection between the chosen legal system and one or both spouses. A choice of a legal system entirely unconnected to the spouses should not be assumed to be effective. The wording, date and formal validity of the antenuptial contract must therefore be examined carefully.

Section 7(9) of the Divorce Act addresses circumstances where a South African court grants a divorce and the matrimonial-property consequences are governed, under South African private international law, by the law of a foreign state. In that situation, the South African court has the same power as a competent court in that foreign state would have had at that time to order that assets be transferred from one spouse to the other. This is a specific statutory power. It should not be described as giving a South African court a general power to grant any redistribution or financial order that might be available under foreign law. The court must identify the relevant foreign law and the asset-transfer power available under that law. Expert evidence of foreign law may be required.

Child-related issues require a separate analysis. The child’s best interests are paramount under section 28(2) of the Constitution and the Children’s Act 38 of 2005. In cross-border disputes, the child’s habitual residence may also be important, particularly in matters involving international child abduction, care and contact, or parental responsibilities and rights.

Grounds for divorce, as contemplated in S3, 4 and 5 of the Divorce Act are:

• irretrievable breakdown of marriage with no reasonable prospect of restoring relationship
• mental illness without a reasonable prospect of a cure
• continuous unconsciousness of a party to the marriage, with no reasonable prospect of recovery

The main ground is irretrievable breakdown under s4. The court must be satisfied that the marriage relationship has reached a state in which there is no reasonable prospect of restoring a normal marriage relationship. The court may postpone proceedings where reconciliation appears possible. Section 5 provides specialised grounds involving mental illness or continuous unconsciousness. The statutory requirements include prescribed periods and medical evidence.

South Africa operates a no-fault divorce system. In terms of the Divorce Act 70 of 1979, as amended, a divorce may be granted primarily on the ground of irretrievable breakdown of the marriage, where the court is satisfied that the marriage relationship has deteriorated to such an extent that there is no reasonable prospect of restoring a normal marital relationship. It is therefore not necessary for either party to establish fault or prove misconduct on the part of the other spouse in order to obtain a divorce. Adultery, separation and other conduct may be considered as evidence of irretrievable breakdown but are not independent fault-based grounds for divorce. However, marital misconduct may be relevant to certain ancillary financial matters, particularly a claim for forfeiture of patrimonial benefits in terms of section 9 of the Divorce Act.

In terms of procedures and timelines for divorces, an uncontested divorce may be resolved relatively quickly (within 6-8 weeks), but timeframes vary substantially between courts and depend on service, administrative requirements, the court roll and whether children or complex financial issues are involved. Contested matters can take many months or several years to finalise.

An action by a party or both parties must be instituted. The plaintiff issues a summons setting out the relief sought, and the summons is served on the defendant. If the defendant does not defend, the matter may proceed on an uncontested basis, subject to the court being satisfied that the statutory requirements are met. In an uncontested divorce at least one party must attend court to give oral evidence on the date of the divorce hearing, confirming that there is no reasonable prospect of restoring the relationship and the marriage has irretrievably broken down.

In contested divorces, pleadings are exchanged, discovery processes occur, relevant documentation is exchanged between the parties, pretrial steps and a trial may follow. Subpoenas for further documents may be issued and experts are appointed. Parties may engage in settlement discussions and/or ADR. The case management Judge issues directives to move the matter towards trial readiness.  Once trial ready, a trial date is allocated. Should either party require interim relief, pending the finalisation of the divorce proceedings, a Rule 43 Application may be issued for maintenance, care and contact arrangements with regard to minor children, and a costs contribution.

Where minor or dependent children are involved, the court must be satisfied that the arrangements for their welfare are satisfactory or the best that can be effected in the circumstances. The Family Advocate may investigate and make recommendations. The court is not bound to grant a divorce merely since the parties have agreed on the terms.

A divorce summons is ordinarily served personally by the sheriff in accordance with the Uniform Rules of Court or the applicable Magistrates’ Courts rules. Alternative forms of service should not be assumed to be valid merely because the defendant has received an electronic copy; they require a proper rule basis or court authorization.

Uniform Rule 5 regulates service of process outside the Republic. Leave of court is generally required before process instituting proceedings is served abroad. The application should establish the nature and extent of the claim, the jurisdictional basis, the proposed method of service and the information available about the defendant’s whereabouts. Applicable international conventions and the law of the state where service is to occur may also need to be considered.

If the defendant cannot be located, the plaintiff may seek an order authorising substituted service or edictal citation, supported by evidence of reasonable enquiries and a proposed method likely to bring the proceedings to the defendant’s attention.

South African divorce procedure is ordinarily framed as an action by one spouse against the other, rather than a joint petition in the form used in some jurisdictions. The spouses may, however, cooperate, conclude a written settlement agreement and proceed on an uncontested basis. The summons must still be issued and properly served, and the court retains responsibility for the decree and for ensuring that children’s interests are protected.

a) A marriage celebrated outside South Africa will generally be recognised if it was formally valid under the law of the place of celebration (lex loci celebrationis), subject to questions of capacity and South African public policy. The law governing the spouses’ matrimonial-property regime is a separate conflict-of-laws question and should not be conflated with recognition of the marriage itself. Same-sex marriages validly concluded abroad are generally capable of recognition, subject to the applicable conflict rules. Polygamous foreign marriages require separate analysis. Their recognition and proprietary or succession consequences may depend on the type of marriage, the applicable foreign law and South African statutory and public-policy rules.

b) The Civil Union Act 17 of 2006 permits two persons, regardless of gender, to conclude a civil union, which may be registered as a marriage or civil partnership. Domestic civil unions have legal consequences under the Act. A foreign registered partnership does not necessarily receive automatic recognition as a marriage in every respect; its legal nature and effects must be examined under the law of the place where it was created and South African conflict-of-laws principles. Unmarried cohabitation does not, merely by virtue of cohabitation, create the full legal consequences of marriage under South African law. Depending on the facts, contractual claims or a universal-partnership claim may nevertheless arise.

c) The Recognition of Customary Marriages Act 120 of 1998 (RCMA) recognises customary marriages that meet the statutory requirements. Section 2 deals with recognition of marriages concluded before and after commencement of the Act. For a post-commencement marriage, section 3 generally requires that the prospective spouses be above the age of 18 (subject to statutory exceptions), both consent to the marriage, and the marriage be negotiated and entered into or celebrated in accordance with customary law. Registration under section 4 is required, but failure to register does not by itself invalidate an otherwise valid customary marriage. Lobola is relevant evidence and may form part of the customary process, but payment or full payment of lobolo is not an absolute statutory prerequisite in every case. The RCMA recognises polygynous customary marriages. Section 7(6) requires a husband who wishes to enter a further customary marriage after commencement of the Act to apply to court for approval of a written contract regulating the future matrimonial-property system of his marriages. The Constitutional Court’s decision in VVC v JRM and Others [2026] ZACC should be considered regarding the statutory treatment of customary marriages and conversion to civil marriage.

d)The Divorce Amendment Act 1 of 2024 amended the Divorce Act to address Muslim marriages, including their dissolution and related protections for minor and dependent children, redistribution and forfeiture. The amendments came into operation on 14 May 2024. Their application depends on the statutory definitions and transitional provisions, including provisions concerning marriages subsisting at specified dates and certain talaq-terminated marriages where proceedings were pending. Women’s Legal Centre Trust v President of the Republic of South Africa [2022] ZACC 23 was a key Constitutional Court decision preceding the legislative amendments. Later cases, including E.S v H.Z.A [2026] ZAGPJHC 262, are relevant, as well as the amended statute when considering the scope of relief in a particular matter. A Hindu religious ceremony, without compliance with the Marriage Act 25 of 1961 or Civil Union Act 17 of 2006, has not generally been treated as creating a civil marriage status equivalent to a marriage registered under those statutes. The position should be approached carefully because constitutional litigation and law-reform work have addressed the recognition and protection of religious marriages. The absence of statutory marriage status does not necessarily exclude every possible contractual, universal-partnership or other private-law remedy. For other religious marriages, the first question is whether the union was also validly solemnised or registered under a South African marriage statute or is recognised under a specific statutory scheme. If not, its consequences require separate analysis under applicable legislation, common law and relevant constitutional decisions.

South Africa is currently in the process of reforming and consolidating its marriage legislation through the proposed Marriage Bill [B43-2023]. The Bill seeks to introduce a single, inclusive legislative framework governing marriages, replacing the existing fragmented system under the Marriage Act 25 of 1961, the Recognition of Customary Marriages Act 120 of 1998 and the Civil Union Act 17 of 2006. It aims to recognise marriages irrespective of religious or cultural affiliation, sex, gender or sexual orientation, including Muslim and other religious marriages, while addressing issues such as polygamous marriages, the minimum age for marriage and the designation of marriage officers. The Bill has undergone extensive public consultation and remains subject to parliamentary deliberation. It has not yet become law.

Yes. Same-sex marriages and civil unions are recognised in South Africa under the Civil Union Act 17 of 2006. Following the landmark Constitutional Court decision in Minister of Home Affairs v Fourie and Another 2006 (1) SA 524 (CC), South Africa recognises same-sex unions.

The Civil Union Act permits two persons, irrespective of their sex, to enter into a civil union, which may be solemnised and registered either as a marriage or as a civil partnership. In terms of section 13 of the Act, the legal consequences applicable to a marriage under the Marriage Act 25 of 1961 apply equally to a civil union. Civil union partners accordingly enjoy substantially the same legal rights, obligations and protections as spouses in a marriage, including in relation to property, inheritance, maintenance, pension benefits and the legal recognition of their relationship for purposes of family law. Same-sex couples are also entitled to adopt children, subject to the ordinary statutory requirements governing adoption.

South African law recognises same-sex marriages and civil partnerships validly concluded in foreign jurisdictions, subject to the ordinary principles of South African private international law. In terms of the common-law principle of lex loci celebrationis, the validity of a marriage is generally determined by the law of the country in which it was solemnised. Accordingly, a same-sex marriage or civil partnership validly concluded in another jurisdiction will generally be recognised in South Africa, provided that it does not offend South African public policy or encounter any other recognised legal impediment. This principle was expressly considered in Steyn v Steyn [2010] ZAWCHC 224, in which the Western Cape High Court recognised a same-sex civil partnership concluded in England as valid and binding in South Africa. A foreign marriage does not ordinarily need to be solemnised again in South Africa to be recognised.

A South African divorce court may make orders dealing with the division of matrimonial assets, payment of spousal and child maintenance, pension interests and, where appropriate, forfeiture of patrimonial benefits. The starting point is the matrimonial-property regime governing the marriage, subject to the parties’ settlement agreement and the court’s statutory powers under the Divorce Act 70 of 1979 and the Matrimonial Property Act 88 of 1984.

Under section 7(1) of the Divorce Act, a court granting a divorce may make an order in accordance with a written agreement between the parties concerning the division of their assets or the payment of maintenance by one spouse to the other. The settlement agreement may be incorporated into the divorce order. Where there is no agreement, the division of assets will ordinarily be determined by the matrimonial-property regime applicable to the marriage. In addition, section 7(3) provides a discretionary redistribution remedy in qualifying marriages out of community of property excluding accrual. This allows the court, where the statutory requirements are met, to order the transfer of assets from one spouse to the other. Such an order may involve a capital payment or transfer of specified property.

Under section 6(3) of the Divorce Act, a court granting a divorce may make any order it considers appropriate concerning the maintenance of a dependent child of the marriage. This includes provision for a minor child and a dependent adult child where the circumstances justify it.

The amount and form of maintenance depend on the child’s reasonable needs and the parents’ respective means and circumstances. The obligation does not automatically end when a child turns 18; it generally continues while the child remains dependent and is not self-supporting.

Under section 7(1) of the Divorce Act, the court may make an order for spousal maintenance in accordance with a written settlement agreement. In the absence of an agreement, section 7(2) gives the court a discretion to make whatever maintenance order it considers just.

In exercising this discretion, the court considers, among other factors:

• The existing and prospective means of each spouse;
• Their respective earning capacities;
• Their financial needs and obligations;
• Their ages;
• The duration of the marriage;
• The standard of living during the marriage;
• Their conduct, insofar as it is relevant to the breakdown of the marriage;
• Any redistribution order under section 7(3); and
• Any other factor the court considers relevant.

There is no prescribed statutory formula for calculating the amount or duration of spousal maintenance. An order may provide for rehabilitative maintenance for a fixed period or longer-term maintenance, depending on the circumstances. Section 7(2) contemplates maintenance for a period ending no later than the death or remarriage of the recipient, whichever occurs first. A lump-sum arrangement may be agreed between the parties in a settlement agreement; this should be distinguished from a capital or property-redistribution order.

Pension interests may also be considered as part of the financial adjustment on divorce. Under section 7(7) of the Divorce Act, a member spouse’s pension interest is generally deemed to form part of that spouse’s assets when determining the parties’ patrimonial benefits, subject to the statutory provisions. Section 7(8) allows the divorce court to direct the pension fund to pay the allocated portion to the non-member spouse when the member’s benefits become payable and to endorse the fund’s records accordingly. The order should identify the relevant fund and member, specify the percentage or amount allocated and contain the wording required to enable the fund to give effect to it. The Divorce Act should be read together with the Pension Funds Act 24 of 1956, including section 37D. A significant development occurred in GD v Minister of Home Affairs and Others [2026] ZACC 39 (9 October 2026). The Constitutional Court confirmed the invalidity of section 7(7)(c), which excluded pension interest from the relevant statutory treatment in certain post-1 November 1984 marriages out of community of property without accrual. However, the Court expressly made its order prospective and provided that it would not affect the legal consequences of acts, omissions or facts existing before the order in relation to marriages concluded on or after 1 November 1984. Accordingly, the decision should not be described as retrospectively making pension interest available for redistribution in all existing post-1984 marriages.

Section 9 of the Divorce Act permits the court, on application, to order that one spouse forfeits all or part of the patrimonial benefits of the marriage in favour of the other. The court must be satisfied that, without such an order, one spouse would be unduly benefited at the expense of the other. In deciding whether forfeiture is appropriate, the court considers the duration of the marriage, the circumstances that led to its breakdown and any substantial misconduct. Forfeiture is not intended to punish a spouse for marital wrongdoing; the central consideration is whether that spouse would otherwise be unduly benefited.

The court may also make an order concerning the legal costs of the divorce proceedings, having regard to the circumstances and the applicable procedural rules.

Overall, the financial relief available depends on the matrimonial-property regime, the parties’ financial circumstances, any settlement agreement and the particular statutory remedies applicable to the marriage.

The division of assets on divorce in South Africa is primarily determined by the matrimonial-property regime governing the marriage. The Matrimonial Property Act 88 of 1984 and the Divorce Act 70 of 1979 regulate the principal regimes and the remedies available to spouses. The three main regimes are marriage in community of property, marriage out of community of property with accrual, and marriage out of community of property without accrual.

In the absence of a valid antenuptial contract excluding community of property, a civil marriage is generally concluded in community of property. The spouses share a joint estate comprising their assets and liabilities, subject to recognised exclusions and applicable statutory or contractual rules. On divorce, the net joint estate is ordinarily divided equally between the spouses after liabilities have been taken into account. The starting point is therefore an accounting and division of the joint estate, rather than a separate assessment of each spouse’s individual contribution to acquiring particular assets.

Where the spouses have concluded a valid antenuptial contract excluding community of property but have not excluded the accrual system, the accrual system applies. Each spouse retains a separate estate during the marriage. On dissolution of the marriage, the spouse whose estate has accrued less acquires a monetary claim for half the difference between the accruals of the two estates. The accrual is calculated by comparing the net value of each spouse’s estate at the commencement of the marriage with its net value at dissolution, subject to the adjustments and exclusions provided for in the Matrimonial Property Act and the antenuptial contract. Certain assets are excluded from the accrual calculation. In particular, inheritances, legacies and donations received during the marriage are generally excluded, unless the spouses have agreed otherwise in their antenuptial contract or the testator or donor has stipulated otherwise. Donations between spouses are also excluded, as are damages for non-patrimonial loss. Assets specifically excluded in the antenuptial contract, and certain assets acquired through those excluded assets, are also left out of the calculation.

Where the spouses have concluded a valid antenuptial contract excluding both community of property and the accrual system, each spouse ordinarily retains a separate estate. There is no automatic sharing of the assets accumulated during the marriage simply because the marriage ends. However, section 7(3) of the Divorce Act provides a discretionary redistribution remedy. In EB (born S) v ER (born B); KG v Minister of Home Affairs and Others [2023] ZACC 32, the Constitutional Court declared the restriction of the section 7(3) remedy to certain pre-1984 marriages unconstitutional. The Court directed that the relevant date limitation be read out pending legislative correction. The suspension of the declaration of invalidity was subsequently extended to 10 April 2027, and the interim reading-in remains operative.  Accordingly, spouses married out of community of property without accrual may seek redistribution under section 7(3), irrespective of whether their marriage was concluded before or after 1 November 1984, subject to the other statutory requirements. The remedy is discretionary and does not create an automatic entitlement to an equal division of the spouses’ estates. Under section 7(4), the spouse seeking redistribution must establish a direct or indirect contribution to the maintenance or increase of the other spouse’s estate. Contributions may include services rendered, care of the family and household, and other contributions recognised by the section.

Section 7(5) requires the court to consider the parties’ existing means and obligations, donations made between them, any relevant order affecting their patrimonial position and any other factor the court considers appropriate. Under section 7(6), the court may also defer satisfaction of a redistribution order on just conditions, including security, interest or payment by instalments.

In addition to the applicable matrimonial-property regime and the redistribution remedy, section 9 of the Divorce Act allows a court to order forfeiture of all or part of the patrimonial benefits of the marriage where one spouse would otherwise be unduly benefited at the expense of the other. The court considers the duration of the marriage, the circumstances leading to its breakdown and any substantial misconduct. The remedy is not punitive: the court must determine whether the benefit that one spouse would otherwise receive would be undue in the circumstances. In Botha v Botha 2006 (4) SA 144 (SCA), the Supreme Court of Appeal emphasised the need to assess the benefit in the context of the statutory factors, rather than considering the benefit in isolation.

Pension interests may form part of the financial adjustment on divorce under sections 7(7) and 7(8) of the Divorce Act, subject to the statutory qualifications and the Constitutional Court’s decision in GD v Minister of Home Affairs and Others [2026] ZACC 39. In that judgment, delivered on 9 October 2026, the Constitutional Court confirmed the invalidity of section 7(7)(c), which had excluded pension interest from the statutory deeming provision in certain post-1984 marriages out of community of property without accrual. The order was prospective and did not affect the legal consequences of acts, omissions or facts existing before the order in relation to marriages concluded on or after 1 November 1984. The decision should therefore be applied with care when considering the date of the marriage and the status of the divorce proceedings.

The guiding principle is that the division of assets is determined first by the matrimonial-property regime applicable to the marriage. Community of property ordinarily results in equal division of the net joint estate; the accrual system gives the spouse with the smaller accrual a monetary claim for half the difference; and marriages out of community of property without accrual generally preserve separate estates, subject to the court’s discretionary redistribution power under section 7(3). Forfeiture under section 9 and the treatment of pension interests may further affect the financial outcome.

A spouse may seek interim relief before the divorce is finalised. In the High Court, Uniform Rule 43 provides a procedure for maintenance pendente lite, a contribution towards the costs of the matrimonial action, and interim care and contact arrangements for children. In the Regional Court, the corresponding procedure is found in Rule 58 of the Magistrates’ Courts Rules.

A Rule 43 application is ordinarily supported by a sworn statement setting out the relief sought and the factual and financial basis for it. The court considers the parties’ circumstances, reasonable needs, available means and the requirements of fairness in the interim. A contribution towards legal costs is intended to address litigation inequality; it is not necessarily an order for every legal expense claimed.

Rule 43 relief is interim and generally operates until the divorce action is determined. Rule 43(6) permits variation where there has been a material change in circumstances. The equivalent Regional Court procedure should be considered where the divorce is instituted in that court.

South African law does not provide an automatic entitlement to post-divorce spousal maintenance merely because one spouse earns less or was financially dependent on the other during the marriage. The court retains a broad discretion when deciding whether maintenance should be awarded and, if so, its amount, duration and conditions.

Under section 7(1) of the Divorce Act 70 of 1979, the court may make a maintenance order in accordance with a written agreement between the parties. In the absence of such an agreement, section 7(2) empowers the court to make an order for maintenance that it considers just, having regard to all relevant circumstances.

The statutory factors which the court must consider include:

• the existing or prospective means of each spouse;
• their respective earning capacities;
• their financial needs and obligations;
• their ages;
• the duration of the marriage;
• the standard of living enjoyed by the parties before the divorce;
• their conduct, insofar as it may be relevant to the breakdown of the marriage;
• any redistribution order made under section 7(3); and
• any other factor which, in the court’s opinion, should be taken into account.

There is no prescribed statutory formula for calculating either the amount or duration of spousal maintenance. Judges retain a discretion to assess the parties’ individual circumstances and determine what would be fair and appropriate. The amount and duration will therefore depend on the evidence presented, including the parties’ financial positions, needs, earning capacities and ability to become financially independent.

Maintenance may be awarded on a rehabilitative or time-limited basis, allowing a financially dependent spouse a reasonable period to obtain employment, improve their earning capacity or become financially self-sufficient. Alternatively, the court may award long-term or ongoing maintenance, potentially continuing until the death or remarriage of the recipient spouse, as contemplated by section 7(2). The appropriate form of maintenance will depend on the circumstances of the particular marriage and the parties’ respective financial positions.

A lump-sum payment in lieu of ongoing monthly maintenance is not generally an order that the court may impose under section 7(2). However, the parties may agree to a lump-sum settlement as part of their written settlement agreement under section 7(1), subject to the agreement being properly incorporated into the divorce order.

The duration and amount of maintenance may also be subject to variation under section 8 of the Divorce Act, where the statutory requirements are satisfied, including where there has been a material change in circumstances. Where maintenance is regulated by a settlement agreement incorporated into the divorce order, the wording and legal nature of the obligation must be considered when determining whether and how it may be varied.

Accordingly, while a clean break between the parties may be desirable in appropriate circumstances, South African law does not require this outcome. The court retains discretion to award either rehabilitative or ongoing maintenance, depending on what is just in the circumstances.

Section 13 of the Divorce Act 70 of 1979 governs the recognition in South Africa of divorce orders granted by foreign courts. A foreign divorce order must be recognised by a South African court if, on the date on which it was granted, either party to the marriage was domiciled in the foreign country (according to either South African law or the law of that country), ordinarily resident there, or a national of that country. It is important to distinguish recognition of the foreign divorce itself from recognition and enforcement of the financial provisions contained in the foreign order. Recognition of the divorce does not automatically make the foreign financial orders executable in South Africa.

Historically, South African private international law applied the lex domicilii matrimonii rule, under which the proprietary consequences of a marriage were determined by the law of the husband’s domicile at the time of the marriage, unless the parties had made a valid choice of law.

This position was addressed in N.P. v Minister of Justice and Constitutional Development and Others (2468/2024) [2026] ZAWCHC 343 (23 June 2026). The Western Cape High Court declared the common-law rule unconstitutional and developed a new hierarchy for determining the law applicable to the proprietary consequences of a marriage – as has been discussed earlier.

The Court directed that the development apply retrospectively to existing marriages, subject to safeguards. These include protection for certain existing antenuptial agreements, transactions and decisions already taken under the previous rule, and marriages dissolved by death or divorce before the date of the order. The judgment is relevant when determining which country’s matrimonial-property law governs the division of assets, but it does not itself provide a procedure for enforcing a foreign financial order.

Section 7(9) of the Divorce Act is also relevant where a South African court grants a divorce and the proprietary consequences of the marriage are governed by foreign law. It gives the South African court the same power, in relation to ordering the transfer of assets from one spouse to the other, as a competent court in the relevant foreign state would have had. This is a power exercised by the South African court in its own divorce proceedings; it is not a general mechanism for registering or enforcing an existing foreign financial order.

A foreign financial order is not automatically executable in South Africa merely because the foreign divorce is recognised. The enforcement of a final foreign money judgment is generally governed by South African common-law principles. In Jones v Krok 1995 (1) SA 677 (A), the Appellate Division confirmed that a foreign judgment may be enforced if, among other requirements:

• The foreign court had international jurisdiction or competence according to the principles recognised by South African law;
• The judgment is final and conclusive;
• Recognition and enforcement would not be contrary to South African public policy;
• The judgment was not obtained by fraud; and
• The judgment does not involve enforcement of a foreign penal or revenue law, or fall foul of other applicable statutory restrictions

South African courts do not ordinarily reconsider the merits of the foreign dispute when deciding whether to enforce a qualifying foreign judgment. However, the judgment creditor generally cannot execute the foreign judgment directly as though it were a South African court order. The creditor must institute proceedings in South Africa to obtain a local judgment based on the foreign judgment. Once a South African judgment has been obtained, the ordinary local execution procedures may be used.

The common-law process is principally suited to final money judgments. Foreign orders requiring the transfer of property or other non-monetary relief may require a different legal approach and are not automatically enforceable through the ordinary foreign money-judgment procedure.

Foreign maintenance orders are dealt with separately under the Reciprocal Enforcement of Maintenance Orders Act 80 of 1963 and applicable reciprocal arrangements. This legislation provides a statutory process for reciprocal enforcement where the relevant foreign country or territory has been proclaimed for this purpose. The process involves the transmission and service of documents between the countries through the relevant authorities and diplomatic channels.

The Department of Justice publishes the countries and territories covered by these arrangements and provides information on the international maintenance process. Where the foreign country is not covered by an applicable reciprocal arrangement, enforcement may be more complicated and may require reliance on common-law principles or other available proceedings. In particular, the common-law requirement that a judgment be final and conclusive may make enforcement of future periodic maintenance obligations more difficult than recovery of amounts already due under a final order.

Where a financial or maintenance order has been made by a South African court, compliance can be pursued through South African enforcement procedures. For maintenance orders, the Maintenance Act 99 of 1998 provides specific civil enforcement mechanisms. Under section 26, where a person fails to pay an amount due under a maintenance order, the outstanding amount, together with applicable interest, may be enforced through:

• Execution against the defaulting party’s property;
• Attachment of the person’s emoluments or earnings; or
• Attachment of a debt owed to that person by a third party.

Section 27 provides for warrants of execution against movable property and, where necessary, immovable property. Section 28 allows for attachment of earnings, while section 30 provides for attachment of debts. The Act also provides for criminal consequences in certain circumstances involving failure to comply with maintenance obligations.

For other financial orders, such as orders requiring payment of a capital amount or transfer of assets, enforcement will depend on the terms and nature of the order and may involve the ordinary civil execution procedures. Deliberate disobedience of a court order may also, in appropriate circumstances, result in contempt-of-court proceedings.

South African law therefore distinguishes between recognition of a foreign divorce, enforcement of financial orders made by a foreign court, and enforcement of financial orders made by South African courts. Foreign money judgments are generally enforced through common-law proceedings to obtain a local judgment, while foreign maintenance orders may benefit from a reciprocal statutory process. Once a South African maintenance or financial order is in place, local civil execution mechanisms are available to assist the successful party in securing compliance.

South African law does not provide a general equivalent of the English statutory regime that allows a former spouse, after a foreign divorce, to apply for a fresh package of financial relief in South Africa simply because the foreign financial outcome is inadequate. The starting point is whether the foreign divorce is recognised and whether a financial order or settlement already exists.

Once a divorce has been validly granted, further claims cannot be entertained unless, for example, fraud is proved.  Where such claims have been held over in terms of the foreign law, the court may be able to deal with these claims.

Where a foreign financial order exists, the former spouse may seek recognition and enforcement through the applicable South African procedure, subject to the requirements and defences described above. A maintenance order may be enforceable through the reciprocal statutory regime if the relevant country is proclaimed. The fact that South Africa recognises the foreign divorce does not itself make every financial term enforceable.

A settlement agreement may potentially be challenged on ordinary contractual grounds such as fraud, misrepresentation, duress or other recognised vitiating factors, depending on the governing law, forum and facts. This is not a general power to reopen a foreign divorce settlement merely because a party later considers it unfair.

Claims relating to children, including child maintenance, are analytically distinct from a former spouse’s personal financial claims. A South African court may have jurisdiction to make or vary child-maintenance orders where the statutory and jurisdictional requirements are met. The Maintenance Act 99 of 1998 and, where relevant, reciprocal enforcement legislation should be considered.

Section 7(9) of the Divorce Act is also not a general post-foreign-divorce remedy. It empowers a South African court, when granting a South African divorce in a case where the proprietary consequences are governed by foreign law, to exercise a specified asset-transfer power that a competent court of the foreign state would have had. It does not create a free-standing right to re-litigate financial claims after a foreign divorce has already been granted.

Three matrimonial regimes are regulated by the Matrimonial Property Act, 88 of 1984  and the Divorce Act 70 of 1979. Marriages in community of property and community of profit and loss – the default system where there is no pre-nuptial agreement.  Spouses pool all their assets and liabilities (irrespective of the source and date of acquisition/encumbrances) and, on divorce, share equally in the joint estate. Marriages out of community of property excluding the accrual system – the ANC has to be validly executed, specifically excluding the accrual system.  Spouses retain their separate estates during their marriage, and on death/divorce, property redistribution claims exist. SA courts retain statutory discretion under S7(3) Divorce Act (following KG v Minister of Home Affairs 2023) to order a redistribution of assets at divorce – even where an antenuptial contract explicitly excludes accrual. Marriages out of community of property subject to the accrual system – a valid ANC that does not expressly exclude the accrual system results in the accrual system automatically applying.  The spouses retain their separate estates.  On death/divorce, the spouse whose estate has shown the smaller growth has a monetary claim for half of the difference between the growth of the spouses’ estates.  Inheritances, donations between spouses and personal injury damages awards are automatically excluded.

Historically, the laws of the country of the husband’s domicile at the time of marriage determined the proprietary consequences of the marriage, unless a specific selection of law between the parties existed.  SA law is applied to maintenance and parental responsibilities and rights. S9 of the Divorce Act provides that if the patrimonial consequences of a marriage are governed by the law of a foreign state, the SA court shall have the same power of the competent foreign court to grant an order on divorce to transfer assets between spouses.

Recently, High Court held in N.P. v Minister of Justice and Constitutional Development 2026, that the rule of lex domicilii matrimonii is unconstitutional as it privileges the husband’s domicile over the wife’s and is unfair discrimination. The Court developed common-law rules to determine the applicable system rather than automatically defaulting to the husband’s domicile. Absent a valid choice of law by the spouses, the proprietary consequences of the marriage are governed, in descending order, by the law of their common domicile, common habitual residence, common nationality, or, failing these, the country with which they were jointly most closely connected at the time of the marriage. The new legal framework applies retrospectively to existing marriages, subject to certain safeguards.

Pre- and post- nuptial agreements validly entered into according to the formalities of the place of execution are enforceable, provided their terms do not violate public policy. Post-marriage agreements concluded within SA must comply with S21(1) of the Matrimonial Property Act.

While these valid agreements establish the default matrimonial property regime, SA courts retain statutory discretion under S7(3) of the Divorce Act (KG v Minister of Home Affairs 2023) to order a redistribution of assets at divorce – even where an antenuptial contract explicitly excludes accrual.

For ANCs executed in SA to be fully enforceable against third parties and on divorce, it must fulfil the statutory requirements of S87 of the Deeds Registries Act, 47 of 1937 in that they should be executed before a duly admitted Notary Public prior to the solemnisation of the marriage, should be attested to by two competent witnesses, and registered in a Deeds Registry within three months of execution (or within six months if executed outside SA). The agreement, if executed outside SA, must be attested by a notary public or entered into in accordance with the law of the country of execution.

For postnuptial contracts executed in SA, to be enforceable, spouses must follow the process under S21(1) of the MPA, and the spouses must bring a formal, joint application to the High Court requesting permission to alter their marital regime. They must publish a formal notice of their intention in the Government Gazette and two local newspapers at least two weeks before the court date, and give explicit, written notice to all known creditors via registered post. The High Court will only grant a court order authorizing the new postnuptial contract if it is fully satisfied that there are sound reasons for the switch, that no other person (including creditors) will be financially prejudiced, and that the application was fully transparent. Once the court order is granted, the new contract must still be formally registered at the Deeds Office.

Foreign matrimonial agreements are enforceable in SA if they satisfy the applicable law governing the matrimonial domicile at the time of marriage, subject to SA public policy considerations. The SA court’s statutory discretion under S7(3) of the Divorce Act (KG v Minister of Home Affairs 2023) to order a redistribution of assets at divorce is also relevant.

S15 of the Maintenance Act, 99 of 1998 enforces the common law duty of parents to support a child as reasonably required for living and upbringing, including the provision of food, clothing, accommodation, medical care and education. If the parties have not reached agreement, s6(3) of the Divorce Act empowers the court to make any order it deems fit regarding children’s maintenance on divorce.

Child maintenance is administered by the court. There is no sliding-scale/set formula that exists in SA to calculate maintenance.  The specific child’s reasonable maintenance requirements are first determined, whereafter the parent’s ability to contribute is then considered according to their respective means.

In the event of failure, the other parent may enforce the order by warrant of execution; garnishee; emoluments attachment; a further maintenance order including payment of the arrears and interest; contempt of court proceedings; criminal sanctions (a fine, suspended sentence and/or imprisonment); or blacklisting (the Maintenance Amendment Act, 9 of 2015). The burden of proof for contempt is high and includes wilful default to comply.

A parent is required to pay child maintenance or provide financial support for the child until the child is self-supporting and no longer financially dependent.  The standard/level of support may decrease once the child attains the age of majority, but may also encompass other items that were not previously applicable.

Any person who is liable to be maintained by another person is entitled to approach the court to enforce this duty. S28(1)(h) Constitution requires that a legal practitioner be assigned to a child by the state if a child litigates.  However, the child’s parent, guardian or a curator ad litem should apply. An adult dependent child can claim maintenance directly from their parents.  Z v Z 2022 held  “sections 6(1)(a) and 6(3) of the Divorce Act vest[s] parents with the requisite legal standing to claim maintenance for and on behalf of their dependent adult children upon their divorce”.

While South African courts do not award a child an arbitrary capital windfall or general property gift, the courts have statutory and common-law powers to consider asset ring-fencing for a child’s direct benefit. In some instances, the court has ordered that the defaulting parent’s pension interest (or investment/annuity) is ringfenced for the purposes of arrears and/or future maintenance.

South Africa recognises cohabitation, including permanent heterosexual and same-sex life partnerships. However, there is no formal legal status equivalent to marriage, and cohabitation does not create a common-law marriage or automatically confer the rights and obligations enjoyed by spouses. Rather, the legal recognition of cohabitation has developed through a combination of judicial decisions, statutory provisions and private agreements.

The Constitutional Court judgment in Bwanya v Master of the High Court recognised that permanent life partnerships should receive legal protection in certain circumstances, particularly where a partner dies intestate. A surviving partner in a permanent life partnership may have a statutory right to inherit from the deceased partner’s estate under the Intestate Succession Act. A surviving partner may also pursue a claim for reasonable maintenance against the deceased partner’s estate under the Maintenance of Surviving Spouses Act, where the relevant requirements are satisfied. Such recognition is not automatic, however, and the surviving partner may be required to establish that a permanent life partnership existed and that the parties had undertaken reciprocal duties of support.

The position is less certain where the relationship breaks down during the lifetime of both partners. Unlike married spouses, cohabitants do not have automatic rights to claim maintenance from one another, share in each other’s property or pension interests, or receive a redistribution of assets upon separation. A cohabiting partner seeking a financial interest in property accumulated during the relationship may, however, approach the High Court on the basis of a universal partnership. In Butters v Mncora, the courts considered the requirements for establishing such a partnership. The claimant must demonstrate that the parties contributed something to the partnership, whether financially, through their skills or by way of labour; that the partnership was established for their joint benefit; and that it was directed towards making a profit or accumulating wealth. A universal partnership may arise expressly or tacitly, but the existence and terms of such an arrangement can be difficult to establish in practice.

There is also recognition of permanent life partnerships in certain specific statutory contexts. For example, under the Medical Schemes Act, a cohabiting partner may qualify to be registered as an adult dependant on their partner’s medical scheme. The Income Tax Act and Estate Duty Act also recognise permanent life partners within the definition of a spouse for certain purposes, potentially allowing for tax-favourable transfers of assets between partners, including the application of spousal roll-over relief in appropriate circumstances. Furthermore, the Compensation for Occupational Injuries and Diseases Act makes provision for a surviving life partner to claim compensation where their partner dies as a result of a workplace accident, subject to the applicable requirements.

The position regarding maintenance claims during the subsistence of a relationship or following its breakdown remains an area of legal development. In EW v VW (12272/22), the majority of the Court found against a claim by a permanent life partner for interim maintenance relief. In reaching its decision, the majority took cognisance of the parallel South African Law Reform Commission review and proposed legislative reforms, emphasising that the legislature, rather than the judiciary, is the primary engine of law reform. The minority judgment of Judge Wille differed, expressing the view that permanent life partnerships deserve constitutional and legal protection.

In light of the absence of automatic financial rights and protections upon the breakdown of a cohabiting relationship, cohabitation agreements, also referred to as life partnership agreements, are particularly important. These agreements are private contracts entered into between the parties and can regulate the financial arrangements during the relationship, ownership of assets, contributions towards household expenses, responsibility for debts and the division of property should the relationship terminate. Such agreements are generally enforceable between the parties, although their enforceability against third parties may present difficulties.

While cohabitation is recognised under South African law, it does not give rise to the automatic legal consequences associated with marriage. The extent of legal protection depends on the circumstances of the relationship, the applicable statutory provisions, the existence of any contractual arrangements and, where relevant, the ability to establish a universal partnership or reciprocal duty of support. Recent jurisprudence demonstrates an increasing recognition of the need to protect permanent life partners, particularly in relation to maintenance and inheritance, although significant gaps remain in the legal framework governing these relationships.

Cohabitants do not have automatic rights to spousal maintenance or asset redistribution upon separation. The reciprocal duty of support remains reserved for marriages and/or civil unions. To secure financial remedies upon separation, a cohabitant must rely on private law remedies. In order to successfully claim post-separation maintenance, the plaintiff faces the strict onus of proving that a contractual, legally enforceable reciprocal duty of support was intentionally undertaken by the parties (either expressly or tacitly through conduct) during the relationship – E.W v V.H 2023

Private law remedies include the division of accumulated wealth on grounds of having a tacit universal partnership – per Butters v Mncora 2012 the claimant must prove that both parties contributed to the partnership for the explicit joint benefit of both parties with the objective of making a profit or accumulating wealth – with a declaratory order validating the partnership, followed by an equitable division of all assets accumulated during the relationship, regardless of whose name they are registered under. Restitution for property capital upgrades on the grounds of unjustified enrichment, provided the claimant can prove that their financial contributions directly enriched the sole property of the other partner, resulting in the claimant’s financial impoverishment without any valid legal cause or contractual intent to donate – with the possibility of a remedy of financial compensation equivalent to the value added to an asset is another option. Additionally, breach of a formal Cohabitation Agreement could give rise to the enforcement of contractual separation provisions, with the applicability of standard contract laws and the court strictly enforcing pre-agreed clauses regarding asset separation or contractual rehabilitative maintenance – with a remedy of specific performance or damages. Where assets are physically registered in both names as co-owners, either party may demand termination of the joint ownership, requesting a sale or a financial buyout of their undivided share.  Unmarried parents may approach Maintenance Courts to claim child support based on the biological parent’s financial means and the child’s reasonable needs.

The Children’s Act  provides for co-guardianship and co-parental rights and responsibilities, which include, inter alia, the right to care for and maintain care and contact with the child. Biological parents of a child acquire parental responsibilities and rights in respect of a child. Mother’s rights and responsibilities are governed by S19 of the Children’s Act. With fathers, a distinction is made between married and unmarried fathers, which are provided for in terms of S20 and 21 of the Act. Unmarried fathers acquire full parental rights and responsibilities if, at the time of the birth of the child, they were living with the mother in a permanent life partnership; or if not, they consent to being identified/successfully apply to be the child’s father or pay customary law damages; contribute/attempt to contribute in good faith to the child’s upbringing for a reasonable period; or contribute or have attempted in good faith to contribute to expenses/maintenance of the child for a reasonable period -s21 of the Children’s Act. S22(1)(b) also affords the mother/ other person who has parental responsibilities and rights in respect of a child to enter into an agreement, providing for the acquisition of such in respect of the child, with any other person having an interest in the care, well-being and development of the child.

Where parents divorce or separate, parental responsibility is determined by either a parenting plan, which is made an order of court, or if the parties are unable to agree, the court will make a determination and order as to what care and contact arrangements are in the child’s best interest, taking into consideration the relevant facts of the matter as well as the relevant expert reports and recommendations.

In South Africa, the jurisdictional requirements for child arrangements – noted as parental rights and responsibilities (care, contact, and guardianship)— are regulated to prevent forum shopping and protect the child’s best interests. The jurisdictional requirements are determined by the type of court, the location of the child, and the status of the parents.

Disputes over contact, primary care, or child protection are brought before the local Children’s Court. Under s29(1) of the Children’s Act, a Children’s Court has jurisdiction over a matter if the child involved is ordinarily resident within the area of jurisdiction of that specific court. If a child is in immediate danger or has been abandoned, a Children’s Court will assume immediate jurisdiction if the child is simply physically present within its boundaries, regardless of where their permanent home is.

The High Court functions as the Upper Guardian of all minor children within its territorial boundaries. It shares concurrent jurisdiction with the lower courts but holds exclusive powers over certain child arrangements.

A specific division of the High Court (for example the Western Cape High Court or the Gauteng Local Division) has jurisdiction over child arrangements if the child is domiciled or ordinarily resident within that province. If a child arrangement dispute arises as part of an active divorce proceeding, the court involved with the divorce matter automatically assumes jurisdiction over the children under the Divorce Act 70 of 1979. Under Section 2 of the Divorce Act, a court has jurisdiction if either of the parties is domiciled in its area on the date the action is instituted, or has been ordinarily resident in its area for at least one year.

While the Children’s Court and Regional Courts may decide on care and contact, the High Court has exclusive jurisdiction under Section 24 of the Children’s Act to consider applications regarding the termination, extension, or substitution of a parent’s guardianship rights (such as removing a parent’s right to consent to a child’s adoption or immigration).

Following structural legal reforms, the Regional Courts now possess the same powers as the High Court regarding divorces and the assignment of parental rights and responsibilities. As with the High Court, their jurisdiction over a child is considered if the child resides within their regional district or if they are dealing with the parents’ divorce action.

When a relationship breaks down and one parent flees across international borders with a child, South African courts apply strict international jurisdictional rules. South Africa is a signatory to the Hague Convention on the Civil Aspects of International Child Abduction. Under this framework, South African courts respect the jurisdiction of the child’s country of habitual residence.

If a parent wrongfully removes a child from another country and brings the child to South Africa, South African family courts will generally refuse to hear a custody or care application on its merits. Instead, the court will rule exclusively on a summary return application, ordering that the child be sent back to their country of origin so that the correct court with proper territorial jurisdiction can decide the parenting arrangements.

Guided by the overarching constitutional principle that the best interests of the child are of paramount importance, s45 of the Children’s Act outlines what courts may adjudicate upon in relation to children which includes, but is not limited to: protection and well-being; care and/or contact; paternity; financial support; guardianship; relocation; departure, removal or abduction of a child from SA.

Post-divorce living arrangements are governed by best interests of the child. Contact arrangements can be joint, sole, or split, depending on circumstances of each case. The schedule of contact varies – one may see a schedule that is an alternating week split, or a 2/2/3 split. There is not a presumption of equal division of time between divorcing or separating parents.

The best interests of children are paramount (s28 Constitution.; s7 and 9 of the Children’s Act), and considerations when making orders in relation to children include:  their relationships with the parents and others; attitude of the parents; exercise of parental responsibilities and rights;  capacity of the parents to provide for needs of the child; effect on the child of any change in circumstances; effect on child of separation from parents or siblings; the need for the child to maintain a connection with family, extended family, culture/tradition; the child’s age, maturity and stage of development; the need to be brought up within a stable family environment; and the need to protect the child from physical/psychological harm.

S10 of the Children’s Act  notes that if a child is at an age, maturity and stage of development where they are able to participate in any matter concerning them, the child has the right to participate in an appropriate way and the views expressed by the child must be given due consideration.  While the court must listen to the child, it is not legally bound to follow their wishes – the best interests of the child remain paramount.

Some ways a child may participate include: participating in a care and contact assessment conducted by a childcare expert, a specialized Family Counsellor interviewing the child in a private, neutral playroom environment and conveying the findings to court in a formal report, a judge/magistrate has judicial discretion to invite child to meet with them privately in chambers, and a Court may appoint an independent legal representative for child.

S18(3)(c)(iii) of the Children’s Act states that a parent/guardian of a child must give or refuse consent for the child’s departure or removal from SA. S18(5) stipulates that, unless a competent court orders otherwise, the consent of all persons that have guardianship of a child is required in respect of any matter referred to in S18(3)(c).

S18(5) of the Children’s Act notes that unless a competent court orders otherwise, the consent of all persons that have guardianship of a child is required in respect of any matter referred to in S18(3)(c), which refers to the departure or removal of a child from SA.

The legal requirements for moving within SA are more nuanced and depend on the wording of the existing parental agreements. The Children’s Act does not feature a specific clause explicitly stating that a parent requires consent for an internal move. However, Section 31(1) of the Act notes that major decisions affecting the child—including a change in their place of residence that significantly impacts the other parent’s contact—requires the primary parent to give due consideration to the views and wishes of the co-holder. Parenting Plans usually feature  a relocation clause that states that neither parent may relocate the child outside a specific radius or outside the provincial boundary without providing formal written notice or obtaining written consent.

The overarching constitutional standard that is important in relocation matters is the best interests of the child – s28(2) of the Constitution and s7 of the Children’s Act. The Children’s Act does not provide a set list of factors, however, the following have been considered by Courts: the child’s best interests, the purpose of relocating, the interests of the relocating and non-relocating parent, the relationship between child(ren) and parents, if appropriate, the child’s views , the practical plan, emotional impact, and post-relocation contact plan.

In SA, cross-border family litigation is governed by a division of judicial power. Foreign orders concerning child care and contact do not automatically hold binding enforcement capability within South Africa. To make a foreign child order enforceable, it may need to undergo a domestic process, considering the Hague Convention and mirror orders.

South African courts do not treat foreign care and contact orders as standard foreign debt judgments. Lower courts (Magistrates’ and Children’s Courts) cannot recognize them; the High Court must be approached as the Upper Guardian of all minors within its border.

If a parent has wrongfully removed a child from their country of habitual residence or is withholding them in South Africa in direct violation of a foreign court order, the case is considered through Chapter 17 of the Children’s Act.

The left-behind parent lodges an application with the Central Authority (The Office of the Chief Family Advocate) or retains a private South African law firm. The High Court does not re-litigate the custody merits. Instead, it functions as a jurisdictional mechanism, enforcing the foreign framework by ordering the prompt summary return of the child to their home country so that the original court may resolve the dispute.

If a parent wishes to enforce a foreign custody structure or visitation schedule against a parent now living in South Africa (without an abduction element), they must launch an application in the High Court. Following the common-law principles set out in Jones v Krok, the applicant must prove that  the foreign court had proper international jurisdiction over the child at the time the order was made; that the  foreign order is final, conclusive, and not subject to an active appeal;  and that enforcing the order does not breach South African public policy or constitutional values.

Even if an applicant meets all the Jones v Krok criteria, a South African court is not automatically bound by a foreign custody order. Under Section 28(2) of the Constitution, the best interests of the child are paramount and serve as an overriding consideration.

The High Court treats a foreign order as a highly persuasive, rather than a non-negotiable mandate. If the respondent parent can prove that the child has become settled in South Africa, or that enforcing the foreign order would actively harm the child’s emotional or physical well-being, the High Court possesses discretion to depart from the foreign ruling and issue a new care and contact structure.

SA courts recognize, utilize, and issue mirror orders in cross-border parenting disputes. When an international relocation is permitted by a foreign court, the foreign court will often make its order conditional upon the parent securing a mirror order from the South African High Court. This guarantees the left-behind parent that their contact and access are enforceable in South Africa . Conversely, if a South African High Court grants a parent permission to relocate internationally, the court will routinely order that the child may not leave South Africa until the relocating parent files proof that the South African parenting plan has been formally registered and mirrored as a consent order in the family courts of the destination country. If a foreign jurisdiction’s legal system makes securing a strict mirror order procedurally impossible, South African courts will accept formal, binding legal undertakings recorded by the foreign attorneys as a substitute safety net.  Once a foreign order is successfully mirrored by a South African High Court, any subsequent breach of that order inside South Africa will be considered a contempt of court.

Chapter 17 of the Children’s Act provides for child abduction matters, recognising that SA is a party to the 1980 Hague Convention on Child Abduction, with the Chief Family Advocate as our designated Central Authority.

The left-behind parent submits an application to the Family Advocate, who works alongside the SA Police Service and the High Court to locate the child and process the application. Under Article 13 of the Convention, a SA High Court must order the immediate return of the child unless the abducting parent can prove a recognized exception.

The Children’s Act recognises surrogate motherhood agreements only when they are concluded for altruistic purposes. Surrogacy cannot be commercial in nature; any payments arising from the agreement that fall outside the scope of those permitted in terms of S301(2) and (3) of the Children’s Act are strictly prohibited and criminalised. Surrogate motherhood agreements may be valid and enforceable in SA, provided they meet the necessary requirements and receive prior confirmation from the High Court.

Surrogacy is available to single individuals and cohabiting couples (both heterosexual and same-sex).However, to secure High Court approval, all applicants—regardless of their relationship dynamic—must satisfy the following statutory criteria. This includes that the individual or couple must prove that they suffer from a permanent and irreversible medical condition that prevents them from conceiving or carrying a child to term. Under Section 294 of the Children’s Act, there is a genetic link requirement – where the gametes of at least one of the commissioning parents must be used in the IVF process. At least one of the commissioning parents must be domiciled within the Republic of South Africa at the time of concluding the agreement. The surrogate herself must be a South African resident, must be acting out of genuine altruistic intent, must have a documented history of at least one successful, viable pregnancy, and must have at least one living child of her own. If she is married or in a cohabiting relationship, her spouse or permanent partner must formally consent to the surrogacy arrangement. Once these conditions are satisfied and the High Court confirms the agreement,  then under S297(1) of the Children’s Act, the commissioning parents are the legal parents of the child from the moment of birth. Provided that a valid, High Court-confirmed surrogate motherhood agreement is in place prior to conception, no subsequent legal steps are required by the commissioning parents to secure recognition. Parental rights vest automatically, allowing the commissioning parents to register the child directly under their names at birth with Department of Home Affairs. However, if the surrogate mother is also a genetic parent of the child, she may terminate the agreement at any time prior to the lapse of 60 days after the birth by filing a written notice with the High Court.

S230 of the Children’s Act allows adoption of any child if it serves their best interests, complies with the Act, and the child is deemed adoptable. Adoptions are concluded in the Children’s Courts in SA. Customary law adoption is also recognised – Rakhav v Road Accident Fund 2019.

A child is adoptable if they are an orphan without a willing guardian/caregiver, or have been abandoned or their parents’ whereabouts are unknown, or have suffered abuse/deliberate neglect by a parent or guardian, or need a permanent alternative placement, or are the stepchild of the prospective adoptive parent, or have a parent/guardian who has legally consented to the adoption (where required). S231 of the Children’s Act outlines who may adopt and the requirements for prospective adoptive parents.  Children may be adopted by couples (both heterosexual and same-sex) jointly such as spouses, permanent life partners, or persons sharing a permanent household unit; as well as by individuals such as widows, widowers, divorced, or unmarried persons; as well as partners of parents such as a married spouse or permanent life partner of the child’s biological parent; as well as specific caregivers such as the child’s foster parent. A prospective adoptive parent must be over 18 years old, fit, proper, willing, and able to undertake full parental rights and responsibilities. Individuals unsuitable to work with children are disqualified. Prospective adoptive parents are screened by an adoption social worker, who may consider cultural and community diversity.

S242 of the Children’s Act stipulates that adoption transfers all parental rights and responsibilities from biological to adoptive parents. There are exceptions to this absolute termination, including Contact Rights  – Haskins v Wildgoose 1996 – in intra-family adoptions, the court, acting as upper guardian, may grant an unmarried biological father contact rights if it serves the child’s best interests. The child’s surname changes to match the adoptive family unless ordered otherwise by Court, and any property owned prior to the adoption is legally retained by the child and remains unaffected.

Foreign Adoptions may be recognised under S266 and 269 of the Children’s Act, and an adoption compliance certificate issued by the Central Authority of a Hague Convention country may be recognized and legally binding in SA. The SA Central Authority retains the power to refuse recognition under strict statutory exceptions.

In South Africa, the legal framework provides for alternative pathways to resolve family disputes out of court.

South African family law utilizes numerous NDCR processes. These include mediation, where an independent, accredited professional (often a family lawyer, social worker, or psychologist) helps parties find common ground. The Family Advocate may also act as a specialized, court-annexed mediation forum specifically tasked with protecting the best interests of minor children during divorces or parental rights disputes. Collaborative law is another available option. Arbitration with regards to family law is currently limited – as the law provides that parties cannot arbitrate the status of a marriage, however the financial and asset-split elements may be referred to private arbitration. Generally, NCDR is not strictly mandatory, however there have been developments that indicate a trend towards mandatory mediation before trial dates will be issued.

Uniform Rule 41A and Magistrate Court Rule 72 note that when a divorce or family law action is initiated in the High or Regional Court, the plaintiff must serve a formal notice stating whether they agree or oppose referring the matter to mediation. The defendant must respond in kind.  In the Gauteng Division High Court, the practice directives provide that no trial date will be issued unless the parties file a comprehensive report indicating that they have first attempted mediation with an accredited mediator. Unreasonable refusal to mediate risks the parties having the case struck from the roll or adverse cost orders.  S33 of the Children’s Act 38 of 2005 also notes that before co-holders of parental rights approach a court over a parenting dispute, they must first attempt to resolve the matter via mediation through a social worker, Family Advocate, or suitable mediator.

Traditional and customary justice systems also function as a specialized form of community-based NCDR within South Africa – acting as an informal, restorative layer of mediation that precedes or complements the formal court system. Operating under the statutory recognition of the Traditional Courts Act, these structures utilize the constitutional principle of Ubuntu to handle conflicts, family succession disputes, and lobola contractual disputes without the adversarial expense. While the law prohibits traditional structures from issuing final judicial decrees—such as a formal divorce or binding pension fund allocations, they serve as accessible, culturally specific ADR mechanisms.

An out-of-court agreement’s legal status depends on whether it has been made an order of the court. Once both parties have signed a settlement agreement or a memorandum of understanding, this may be considered a legally binding and enforceable private contract. In order to gain full execution capacity, the agreement must be presented to a Magistrate or Judge during the divorce or application proceedings to be made an order of the court.  Once a NCDR agreement becomes a court order, non-compliance moves from a breach of contract into contempt of court.

Developments in the near future include:

The General (Family) Laws Amendment Bill (B20-2025) is under consideration by the Portfolio Committee on Justice and Constitutional Development. It expands asset redistribution protections on divorce, eliminates historical cut off-dates, codifies Judge’s wider discretionary powers to override inequitable prenuptial contracts and order an equitable transfer of assets for marriages out of community of property without accrual, considers reform in the Office of the Family Advocate, and will expand asset redistribution rights to instances where a marriage is dissolved by the death of a spouse. Pension interests and retirement savings will be factored into the division of assets.

The Draft Family Dispute Resolution Bill 2024 and the final Report Project 100A Care and Contact with Children- Alternative Dispute Resolution in Family Matters – both the Report and Draft Bill have been submitted to the Department of Justice for consideration and further actioning. This Bill hopes to establish mandatory ADR systems, entreating divorcing parents into mediation or parenting coordination before they are permitted to launch adversarial child-custody matters in court.

In N.P. v Minister of Justice and Constitutional Development 2026, the High Court declared the patriarchal lex domicilii matrimonii common-law rule unconstitutional, ending the practice where, if a couple had an international or cross-border marriage, the husband’s domicile at the time of marriage determined the couple’s property rights. It was replaced with a gender-neutral framework for determining marital property regimes. The ruling is effective retrospectively without disrupting finalized matters. This will impact on how future cross-border asset divisions, deceased estates, and conveyancing property transactions are handled.

The New Marriage Bill (B43-2023) is relevant. Parliament is working towards a single, unified statutory framework for all marriages in SA, to replace the fragmented Marriage Act, Civil Union Act, and Recognition of Customary Marriages Act. Changes include equal legal status and requirements for all civil, customary, same-sex,  and religious unions; strict prohibition on child marriages – minimum age of 18; and expanded grounds for marital dissolution.

In SA, family proceedings in the High Court are technically open to the public, whilst Children’s Court matters are strictly private. High Court and Magistrate Courts usually operate as ‘open courts’, where anyone may sist in the public gallery. However, the presiding Judge or Magistrate has the statutory discretion to order that a trial be held in camera where public exposure may result in severe prejudice or violate the bests interests of a minor child. Proceedings held under the Children’s Act 38 of 2005 are private. Only the parties, their legal representatives, and court officials are permitted inside the courtroom.

The media may attend open-court family hearings, however what they are legally permitted to publish is restricted. The media may attend and report on the material facts and legal arguments of a divorce, however they are prohibited from publishing the identities, names, or any information that could reveal the identity of any party or child involved, unless the court explicitly grants exceptional permission.  The media is guided by Magistrates Commission Media Guidelines and High Court Protocols – journalists may use handheld digital devices for note-taking, but capturing live video or audio of family/divorce evidence is highly restricted and generally requires a formal 24-hour advanced application to the judge.

Judgements are public records, however they are routinely anonymised by the courts. If a family law judgment contains sensitive personal details, asset disclosures, or involves children, the law reports anonymise the parties and redact these details. Cases are often reported using initials or pseudonyms—for example, Z v Z or KG v CB. The legal reasoning, division of assets, maintenance assessments, and constitutional interpretations within the judgment are made public to guide future legal precedents. However, the physical court file and the specific pleadings can generally only be accessed by the legal representatives on record.

When a relationship breaks down in SA, it has an impact on estate planning, wills, and how wealth is distributed upon death. South African law considers freedom of testation, however certain statutes further guide and protect persons during a separation or divorce. The legal consequences depend on whether a person is legally divorced, undergoing a separation, or part of a customary or life partnership.

Where parties are legally divorced and one party passes away before updating their will, S2B of the Wills Act 7 of 1953 provides for a 90 day grace period.  For three months from the date the divorce order is granted, the law acts as though the ex-spouse has predeceased you. Where you pass away within those three months, any clauses in your old will that may have left assets to your ex-spouse will be ignored, and those assets will go to your alternative heirs, or your intestate estate. After the 90 days, this grace period expires. Where a party fails to update their will and passes away after this 90 day period, there is a legal presumption that the party intentionally chose to leave their assets to their ex-spouse, and the old will becomes fully enforceable, with the ex-spouse inheriting everything that had originally been assigned to them in the will.

Where a party dies intestate during a relationship breakdown, their assets are distributed according to the Intestate Succession Act 81 of 1987.  If the parties are separated but not yet divorced, they are still legally married. Where a party dies intestate, the estranged spouse is entitled to their entire estate (or a child’s share of at least R250 000, whichever is greater). In the past, unmarried cohabiting partners did not have intestate inheritance rights. However, the landmark Constitutional Court Case Bwanya v Master of the High Court, Cape Town [2021] ZACC 51 held that heterosexual life partners who have undertaken reciprocal duties of support now have the right to inherit from each other’s intestate estates, similar to married spouses. If the cohabiting relationship breaks down, this separation should be documented to prevent a former partner from claiming that they were still a permanent life partner at the time of the party’s death.

A relationship breakdown’s impacts will be influenced by the specific matrimonial property regime entered into.  Where parties were married in community of property, upon death or separation there is 50% ownership of the joint estate. Even if a party were to draft a new will leaving all their wealth to their children, the party is only able to bequeath their 50% share. The remaining 50% automatically belongs to their estranged spouse. Where the parties were married out of community of property, accrual claims are relevant, with the spouse whose estate grew less during the marriage having a claim against the larger estate. Where a party dies during a separation, the estranged spouse may claim their accrual portion directly from the deceased estate before the party’s heirs receive their portions.

Relationship breakdowns do not end the party’s financial obligations upon death. The deceased estate can be held liable for ongoing support through The Maintenance of Surviving Spouses Act 27 of 1990 by lodging a claim against the deceased estate for reasonable maintenance; and minor children and dependant major children also have a preferential claim against the deceased estate for maintenance – with the children’s claim ranking higher than any heirs named in the will.

Beneficiary nominations are another important consideration. Life Insurance Policies are paid directly to the nominated beneficiary on the policy. Pensions, Provident and Retirement Annuities are governed by s37C of the Pension Funds Act 24 of 1956, with the trustees being legally obligated to consider financial dependants, with trustees possibly allocating retirement fund benefits to the estranged partner, irrespective of the contents of the will.