Family Law

Marriage

It is possible to marry in religious or civil form, and customary marriages have been recognized by law since 1998. Since 2006, same-sex marriages can also be entered into at a registry office and essentially have the same rights and obligations as marriages between a man and a woman.
Matrimonial property law is governed either by the Matrimonial Property Act or by a premarital agreement concluded between the spouses. According to the law, you can choose between three forms of matrimonial property regime:  Community of property, separation of property and community of accrued gains. Anyone who does not conclude a notarized marriage contract before marriage is married in community of property, whereby one spouse assumes half of all the debts and property of the other spouse. In principle, one spouse can freely dispose of the property of the other without the latter's consent.  There are a few exceptions to this principle. Both spouses have the same rights in the management of the property. This status can only be changed later by the High Court on application in a costly and lengthy procedure.
South African citizenship cannot be acquired through marriage to a South African citizen. The only grounds for acquisition are birth, descent or naturalization. Anyone who is the spouse of a South African citizen can apply for citizenship by naturalization if they are legally resident in South Africa, have their permanent residence there and have resided permanently in the Republic of SA for at least 2 years. For this application, however, the law stipulates further requirements that must be met.

Divorce

Divorce and the consequences of divorce are governed by the Divorce Act of 1979, which was last updated in 2024. Marriages entered into under the Marriage Act or under common law can only be divorced by a court judgment. Divorce is only possible on a few grounds, but is no longer based on the fault principle. The grounds are irretrievable breakdown of the marriage, mental illness or prolonged unconsciousness (coma) of one spouse.
An irretrievable breakdown of the marriage exists if it is clear to the court that the marital union has been permanently destroyed and that there is no longer any possibility of returning to a normal and functioning partnership (Art. 4 para. 1 DA). Mental illness or coma are present if one partner has been permanently committed to a closed institution for at least two years or has been in a coma for more than 6 months before the application for divorce is filed and expert doctors confirm that the respondent is unlikely to awaken from his or her coma in the long term.
If the spouses agree on the breakdown of the marriage and the material terms of the divorce as part of a divorce agreement, it is quite possible to complete a divorce in less than three to six months. However, as an agreement is very often not reached, it can take 2 to 3 years to finalize the divorce.
Divorces can be heard either in the High Court or, since 2010, in the Regional Courts. The transfer of divorce cases to the Regional Courts was primarily intended to speed up the processing of civil proceedings, as waiting for a hearing date in the High Court could take up to 2 years. However, the change was met with displeasure by the judges of the Regional Courts, who had always dealt with criminal matters, but who are by this time presumably more comfortable with their expanded functions.