Navigating divorce in South Africa: from uncontested to contested

UNLIKE the United States, South Africa's divorce system is essentially no-fault, nor does it require couples to live apart for a set period.

- ZELDA VENTER

It is a more pragmatic approach to divorce that ensures individuals are not trapped in marriages that have clearly broken down, says Cor Van Deventer, Director at law firm VDM Incorporated in Sandton.Divorce in South Africa is granted on three grounds, he explains, with the most common being the irretrievable breakdown of the marriage. Mental illness and continuous unconsciousness also play a part.

"Uncontested divorces, where both parties agree, carry legal costs ranging from R8 000 to R20 000 and generally take between six and 12 weeks to finalise. Contested divorces, on the other hand, can stretch on for months - even years - and can incur legal fees sometimes running up to hundreds of thousands of rands. And then there are the high net worth divorces which can cost millions and take years to finalise," Van Deventer explains.

Among the country's most notable and public divorce cases in terms of settlements was that of businessman Bill and Edith Venter in 1994. "While not a protracted divorce, she was awarded R12 million, which even today is a significant amount of money," says Van Deventer.

He explains that dissolving a marriage in South Africa, whether civil, customary, religious or a civil union, is done via court order, and "crucially, even if one spouse proves irretrievable breakdown, and the other opposes it, the court will grant the divorce".

In addressing grounds for divorce, Van Deventer says the court will consider a marriage to be irretrievably broken where spouses have lived apart for a continuous period of at least one year, if there's no prospect of reconciliation.

Regarding instances of adultery, loss of trust and criminal convictions and imprisonment, he says: "While adultery alone is not a legal ground for divorce, it may serve as evidence of the breakdown of the marriage if the wronged spouse believes that reconciliation is impossible".