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Understanding the Divorce Procedure

There is no denying that recent events, especially with regards to the Covid-19 pandemic, have had a huge impact on many aspects of our personal lives – and marriages and relationships have been no different. According to recent stats published on iol.co.za, “there has been a 20 percent increase in divorce applications in South Africa since level 4 of the national lockdown”. A divorce is never easy and involves many steps and procedures. Below we share a basic understanding of the divorce process, in a South African context. 

The first thing to note is that all divorces are different and that there are many different factors which influence how a divorce proceeds. How you are married, whether in community of property, out of community of property without the accrual or out of community of property with the accrual, are important factors to take into consideration. 


Married in community of property: 

This means that both estates are joined together in equal and undivided shares. Getting married in community of property also means that you are responsible for all debt incurred by your spouse – even debt that was incurred before your marriage. 


Married out of community of property without the accrual: 

With this marriage contract, each spouse keeps a separate estate and all assets and liabilities you had before getting married, this also includes any assets (or debt) acquired during the marriage, will be kept as your separate estate. 


Married out of community of property with the accrual: 

During the marriage, each spouse retains control of their own property and is responsible for their own debts. On dissolution of the marriage, depending on the Ante-Nuptial Contract, the value of the assets obtained during the marriage are then shared equally. 

How you are married will play an important factor in how assets and/or liabilities are dealt with. For example, do the assets include businesses, immovable property or vehicles and which of these are you entitled to? Are there any personal loan accounts, bonds, vehicle finance or credit cards and who is responsible for these different liabilities? If you need more assistance with regards to the accrual system and how it is calculated, visit our blog post here. 

Whether you have children, and how old they are, will also impact your divorce procedure. Important questions, such as those listed below, will need to be answered: 

  • • Where and with whom will the children be living during and after the divorce? 
  • • What contact will they have with the other parent? 
  • • What are the financial needs of the children and how will these needs be met? 
  • • That all arrangements made are in the best interest of the children. 


This step can cause much stress for all parties involved and we recommend getting the assistance of a mediator, social worker, psychologist, attorney or Family Advocate’s Office – especially if you are unable to reach an agreement on this on your own. 

Three further factors to take into consideration are: 

  • • how long you have been married for; 
  • • if there is a need for spousal maintenance and 
  • • whether you were married in terms of any religious or cultural marriage rights. 


Spousal maintenance refers to a claim for financial support during or after the dissolution of marriage and both a husband or wife may apply for this support. 

The aspects that determine spousal maintenance include: 

  • • The earning capacity of each spouse; 
  • • The financial needs and obligations of each spouse; 
  • • The age of each spouse; 
  • • The duration of the marriage;
  • • The qualifications and ability to find employment of each spouse; 
  • • The standard of living before the divorce; 
  • • The value of the assets that each spouse may receive after the divorce; 
  • • Any other factor that the court may find relevant (for example, how each spouse conducted themselves and how relevant this is to the breakdown of the marriage). 


Before a court can grant a final order of divorce, all of the above questions will need to be answered (either by written agreement between both parties or by an order of court) and you will be obligated to prove that the marriage has irretrievably broken down and that all measures were taken to try and save the marriage first. The court will also require the reasons for the breakdown. Without this the court may not grant a final order of divorce. 


It is, therefore, imperative that all aspects of the divorce procedure are followed correctly and legally and that you seek the assistance of a Family Law Attorney. 


For further information, contact us on 011 475 1398 or email mouchanev@alanjoseatt.co.za. 

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