Divorce Act, 1979
To amend the law relating to divorce and to provide for incidental matters.
(Afrikaans text signed by the Acting State President.)
(Assented to 8 June 1979.)
as amended by
Matrimonial Property Act, No. 88 of 1984
Transfer of Powers and Duties of the State President Act, No. 97 of 1986
Mediation in Certain Divorce Matters Act, No. 24 of 1987
Marriage and Matrimonial Property Law Amendment Act, No. 2 of 1988
Divorce Amendment Act, No. 7 of 1989
Divorce Amendment Act, No. 44 of 1992
Domicile Act, No. 3 of 1992
Divorce Amendment Act, No. 95 of 1996
Justice Laws Rationalisation Act, No. 18 of 1996
Films and Publications Act, No. 65 of 1996
Divorce Courts Amendment Act, No. 65 of 1997
Judicial Matters Second Amendment Act, No. 55 of 2003
Jurisdiction of Regional Courts Amendment Act, No. 31 of 2008
Be it enacted by the State President, the Senate and the House of Assembly of the Republic of South Africa, as follows:―
1. (1) In this Act, unless inconsistent with the context—
“court” means any High Court as contemplated in section 166 of the Constitution of the Republic of South Africa, 1996, or a court for a regional division contemplated in section 29(1B) of the Magistrates’ Courts Act, 1944 (Act No. 32 of 1944), which has jurisdiction with respect to a divorce action;
“divorce action” means an action by which a decree of divorce or other relief in connection therewith is applied for, and includes—
“pension fund” means a pension fund as defined in section 1 (1) of the Pension Funds Act, 1956 (Act No. 24 of 1956), irrespective of whether the provisions of that Act apply to the pension fund or not;
“pension interest”, in relation to a party to a divorce action who—
“rules”, in relation to a pension fund, means rules as defined in section 1 (1) of the Pension Funds Act, 1956.
(2) For the purposes of this Act a divorce action shall be deemed to be instituted on the date on which the summons is issued or the notice of motion is filed or the notice is delivered in terms of the rules of court, as the case may be.
2. (1) A court shall have jurisdiction in a divorce action if the parties are or either of the parties is—
(2) A court which has jurisdiction in terms of subsection (1) shall also have jurisdiction in respect of a claim in reconvention or a counter-application in the divorce action concerned.
(3) A court which has jurisdiction in terms of this section in a case where the parties are or either of the parties is not domiciled in the Republic shall determine any issue in accordance with the law which would have been applicable had the parties been domiciled in the area of jurisdiction of the court concerned on the date on which the divorce action was instituted.
(4) The provisions of this Act shall not derogate from the jurisdiction which a court has in terms of any other law or the common law.
3. A marriage may be dissolved by a court by a decree of divorce and the only grounds on which such a decree may be granted are—
4. (1) A court may grant a decree of divorce on the ground of the irretrievable break-down of a marriage if it is satisfied that the marriage relationship between the parties to the marriage has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between them.
(2) Subject to the provisions of subsection (1), and without excluding any facts or circumstances which may be indicative of the irretrievable break-down of a marriage, the court may accept evidence—
as proof of the irretrievable break-down of a marriage.
(3) If it appears to the court that there is a reasonable possibility that the parties may become reconciled through marriage counsel, treatment or reflection, the court may postpone the proceedings in order that the parties may attempt a reconcilation.
(4) Where a divorce action which is not defended is postponed in terms of subsection (3), the court may direct that the action be tried de novo, on the date of resumption thereof, by any other judge of the court concerned.
5. (1) A court may grant a decree of divorce on the ground of the mental illness of the defendant if it is satisfied—
(2) A court may grant a decree of divorce on the ground that the defendant is by reason of a physical disorder in a state of continuous unconsciousness, if it is satisfied—
(3) The court may appoint a legal practitioner to represent the defendant at proceedings under this section and order the plaintiff to pay the costs of such representation.
(4) The court may make any order it may deem fit with regard to the furnishing of security by the plaintiff in respect of any patrimonial benefits to which the defendant may be entitled by reason of the dissolution of the marriage.
(5) For the purposes of this section the expressions “institution”, “mental illness", “patient”, “State patient” and “reception order” shall bear the meaning assigned to them in the Mental Health Act, 1973.
5A. If it appears to a court in divorce proceedings that despite the granting of a decree of divorce by the court the spouses or either one of them will, by reason of the prescripts of their religion or the religion of either one of them, not be free to remarry unless the marriage is also dissolved in accordance with such prescripts or unless a barrier to the remarriage of the spouse concerned is removed, the court may refuse to grant a decree of divorce unless the court is satisfied that the spouse within whose power it is to have the marriage so dissolved or the said barrier so removed, has taken all the necessary steps to have the marriage so dissolved or the barrier to the remarriage of the other spouse removed or the court may make any other order that it finds just.
6. (1) A decree of divorce shall not be granted until the court—
(2) For the purposes of subsection (1) the court may cause any investigation which it may deem necessary, to be carried out and may order any person to appear before it and may order the parties or any one of them to pay the costs of the investigation and appearance.
(3) A court granting a decree of divorce may, in regard to the maintenance of a dependent child of the marriage or the custody or guardianship of, or access to, a minor child of the marriage, make any order which it may deem fit, and may in particular, if in its opinion it would be in the interests of such minor child to do so, grant to either parent the sole guardianship (which shall include the power to consent to the marriage of the child) or the sole custody of the minor, and the court may order that, on the predecease of the parent to whom the sole guardianship of the minor is granted, a person other than the surviving parent shall be the guardian of the minor, either jointly with or to the exclusion of the surviving parent.
(4) For the purposes of this section the court may appoint a legal practitioner to represent a child at the proceedings and may order the parties or any one of them to pay the costs of the representation.
7. (1) A court granting a decree of divorce may in accordance with a written agreement between the parties make an order with regard to the division of the assets of the parties or the payment of maintenance by the one party to the other.
(2) In the absence of an order made in terms of subsection (1) with regard to the payment of maintenance by the one party to the other, the court may, having regard to the existing or prospective means of each of the parties, their respective earning capacities, financial needs and obligations, the age of each of the parties, the duration of the marriage, the standard of living of the parties prior to the divorce, their conduct in so far as it may be relevant to the break-down of the marriage, an order in terms of subsection (3) and any other factor which in the opinion of the court should be taken into account, make an order which the court finds just in respect of the payment of maintenance by the one party to the other for any period until the death or remarriage of the party in whose favour the order is given, whichever event may first occur.
(3) A court granting a decree of divorce in respect of a marriage out of community of property—
may, subject to the provisions of subsection (4), (5), and (6), on application by one of the parties to that marriage, in the absence of any agreement between them regarding the division of their assets, order that such assets, or such part of the assets, of the other party as the court may deem just be transferred to the first-mentioned party.
(4) An order under subsection (3) shall not be granted unless the court is satisfied that it is equitable and just by reason of the fact that the party in whose favour the order is granted, contributed directly or indirectly to the maintenance or increase of the estate of the other party during the subsistence of the marriage, either by the rendering of services, or the saving of expenses which would otherwise have been incurred, or in any other manner.
(5) In the determination of the assets or part of the assets to be transferred as contemplated in subsection (3), the court shall, apart from any direct or indirect contribution made by the party concerned to the maintenance or increase of the estate of the other party, as contemplated in subsection (4), also take into account—
(6) A court granting an order under subsection (3) may, on application by the party against whom the order is granted, order that satisfaction of the order be deferred on such conditions, including conditions relating to the furnishing of security, the payment of interest, the payment of instalments, and the delivery or transfer of specified assets, as the court may deem just.
(7) (a) In the determination of the patrimonial benefits to which the parties to any divorce action may be entitled, the pension interest of a party shall, subject to paragraphs (b) and (c), be deemed to be part of his assets.
(b) The amount so deemed to be part of a party’s assets, shall be reduced by any amount of his pension interest which, by virtue of paragraph (a), in a previous divorce—
(c) Paragraph (a) shall not apply to a divorce action in respect of a marriage out of community of property entered into on or after 1 November 1984 in terms of an antenuptial contract by which community of property, community of profit and loss and the accrual system are excluded.
(8) Notwithstanding the provisions of any other law or of the rules of any pension fund—
(9) When a court grants a decree of divorce in respect of a marriage the patrimonial consequences of which are according to the rules of the South African private international law governed by the law of a foreign state, the court shall have the same power as a competent court of the foreign state concerned would have had at that time to order that assets be transferred from one spouse to the other spouse.
8. (1) A maintenance order or an order in regard to the custody or guardianship of, or access to, a child, made in terms of this Act, may at any time be rescinded or varied or, in the case of a maintenance order or an order with regard to access to a child, be suspended by a court if the court finds that there is sufficient reason therefor: Provided that if an enquiry is instituted by the Family Advocate in terms of section 4 (1) (b) or (2) (b) of the Mediation in Certain Divorce Matters Act, 1987, such an order with regard to the custody or guardianship of, or access to, a child shall not be rescinded or varied or, in the case of an order with regard to access to a child, not be suspended before the report and recommendations referred to in the said section 4 (1) have been considered by the court.
(2) A court other than the court which made an order referred to in subsection (1) may rescind, vary or suspend such order if the parties are domiciled in the area of jurisdiction of such first-mentioned court or the applicant is domiciled in the area of jurisdiction of such first-mentioned court and the respondent consents to the jurisdiction of that court.
(3) The provisions of subsections (1) and (2) shall mutatis mutandis apply with reference to any order referred to in subsection (1) given by a court in a divorce action before the commencement of this Act.
9. (1) When a decree of divorce is granted on the ground of the irretrievable break-down of a marriage the court may make an order that the patrimonial benefits of the marriage be forfeited by one party in favour of the other, either wholly or in part, if the court, having regard to the duration of the marriage, the circumstances which gave rise to the break-down thereof and any substantial misconduct on the part of either of the parties, is satisfied that, if the order for forfeiture is not made, the one party will in relation to the other be unduly benefited.
(2) In the case of a decree of divorce granted on the ground of the mental illness or continuous unconsciousness of the defendant, no order for the forfeiture of any patrimonial benefits of the marriage shall be made against the defendant.
10. In a divorce action the court shall not be bound to make an order for costs in favour of the successful party, but the court may, having regard to the means of the parties, and their conduct in so far as it may be relevant, make such order as it considers just, and the court may order that the costs of the proceedings be apportioned between the parties.
11. The procedure applicable with reference to a divorce action shall be the procedure prescribed from time to time by rules of court.
12. (1) Except for making known or publishing the names of the parties to a divorce action, or that a divorce action between the parties is pending in a court of law, or the judgment or order of the court, no person shall make known in public or publish for the information of the public or any section of the public any particulars of a divorce action or any information which comes to light in the course of such an action.
(2) The provisions of subsection (1) shall not apply with reference to the publication of particulars or information—
(3) The provisions of subsections (1) and (2) shall mutatis mutandis apply with reference to proceedings relating to the enforcement or variation of any order made in terms of this Act as well as in relation to any enquiry instituted by a Family Advocate in terms of the Mediation in Certain Divorce Matters Act, 1987.
(4) Any person who in contravention of this section publishes any particulars or information shall be guilty of an offence and liable on conviction to a fine not exceeding one thousand rand or to imprisonment for a period not exceeding one year or to both such fine and such imprisonment.
13. The validity of a divorce order or an order for the annulment of a marriage or for judicial separation granted in a court of a foreign country or territory shall be recognized by a court in the Republic if, on the date on which the order was granted, either party to the marriage—
14. It shall not be competent for a court to issue an order for the restitution of conjugal rights or for judicial separation.
15. This Act shall not apply with reference to a divorce action or proceedings for the restitution of conjugal rights or for judicial separation instituted before the commencement of this Act.
16. Section 5 of the Matrimonial Affairs Act, 1953, is hereby amended—
17. Section 72 of the Administration of Estates Act, 1965, is hereby amended by the substitution for that part of subsection (1) which precedes paragraph (b) thereof, of the following:
“(1) The Master shall, subject to the provisions of subsection (3) and to any applicable provision of section 5 of the Matrimonial Affairs Act, 1953 (Act No. 37 of 1953), and section 4 of the Matrimonial Affairs Ordinance, 1955 (Ordinance No. 25 of 1955), of the territory, or any order of court made under any such provision or any provision of the Divorce Act, 1979, on the written application of any person—
18. The laws mentioned in the Schedule are hereby repealed to the extent set out in the third column of the Schedule.
19. This Act shall be called the Divorce Act, 1979, and shall come into operation on 1 July 1979.
|No. and year of law||Short title||Extent of repeal|
|Act No. 32 of 1935||Divorce Laws Amendment Act, 1935||The whole|
|Act No. 22 of 1939||Matrimonial Causes Jurisdiction Act, 1939||The whole|
|Act No. 17 of 1943||Matrimonial Causes Jurisdiction Amendment Act, 1943||The whole|
|Act No. 35 of 1945||Matrimonial Causes Jurisdiction Act, 1945||The whole|
|Act No. 37 of 1953||Matrimonial Affairs Act, 1953||Sections 6, 7, 8, 9 and 10|
|Act No. 70 of 1968||General Law Amendment Act, 1968||Sections 21, 22 and 23|