The Divorce Act

DIVORCE ACT
NO. 70 OF 1979

ARRANGEMENT OF SECTIONS

1. Definitions
2. Jurisdiction
3. Dissolution of marriage and grounds of divorce
4. Irretrievable break-down of marriage as ground of divorce
5. Mental illness or continuous unconsciousness as grounds of divorce
5A. Refusal to grant divorce
6. Safeguarding of interests of dependent and minor children
7. Division of assets and maintenance of parties
8. Rescission, suspension or variation of orders
9. Forfeiture of patrimonial benefits of marriage
10. Costs
11. Procedure
12. Limitation of publication of particulars of divorce action
13. Recognition of certain foreign divorce orders
14. Abolition of orders for restitution of conjugal rights and judicial separation
15. Application of Act
16.
17.
18. Repeal of laws
19. Short title and commencement
Schedule

1.   Definitions.—(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 (Act No. 108 of 1996), or a divorce court established under section 10 of the Administration Amendment Act, 1929 (Act No. 9 of 1929), which has jurisdiction with respect to a divorce action;

[Definition of “court” substituted by s. 4 of Act No. 65 of 1997.]

(Editorial Note: Definition of “court” to be substituted by s. 10 (2) of Act No. 31 of 2008 with effect from a date to be fixed by the President by proclamation in the Gazette – date not fixed.)

“divorce action” means an action by which a decree of divorce or other relief in connection therewith is applied for, and includes—

(a)

an application pendente lite for an interdict or for the interim custody of, or access to, a minor child of the marriage concerned or for the payment of maintenance; or

(b)

an application for a contribution towards the costs of such action or to institute such action, or make such application, in forma pauperis, or for the substituted service of process in, or the edictal citation of a party to, such action or such application;

“Family advocate” . . . . .

“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;

[Definition of “pension fund” added by s. 1 of Act No. 7 of 1989.]

“pension interest”, in relation to a party to a divorce action who—

(a)

is a member of a pension fund (excluding a retirement annuity fund), means the benefits to which that party as such a member would have been entitled in terms of the rules of that fund if his membership of the fund would have been terminated on the date of the divorce on account of his resignation from his office;

(b)

is a member of a retirement annuity fund which was bona fide established for the purpose of providing life annuities for the members of the fund, and which is a pension fund, means the total amount of that party’s contributions to the fund up to the date of the divorce, together with a total amount of annual simple interest on those contributions up to that date, calculated at the same rate as the rate prescribed as at that date by the Minister of Justice in terms of section 1 (2) of the Prescribed Rate of Interest Act, 1975 (Act No. 55 of 1975), for the purposes of that Act;

[Definition of “pension interest” added by s. 1 of Act No. 7 of 1989.]

“rules”, in relation to a pension fund, means rules as defined in section 1 (1) of the Pension Funds Act, 1956.

[Definition of “rules” added by s. 1 of Act No. 7 of 1989.]

(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.   Jurisdiction.—(1)  A court shall have jurisdiction in a divorce action if the parties are or either of the parties is—

(a)

domiciled in the area of jurisdiction of the court on the date on which the action is instituted; or

(b)

ordinarily resident in the area of jurisdiction of the court on the said date and have or has been ordinarily resident in the Republic for a period of not less than one year immediately prior to that date.

[Sub-s. (1) substituted by s. 6 (a) of Act No. 3 of 1992.]

(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.

[Sub-s. (2) amended by s. 6 (b) of Act No. 3 of 1992.]

(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.

[Sub-s. (3) substituted by s. 6 (c) of Act No. 3 of 1992.]

(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.   Dissolution of marriage and grounds of divorce.—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—

(a)

the irretrievable break-down of the marriage as contemplated in section 4;

(b)

the mental illness or the continuous unconsciousness, as contemplated in section 5, of a party to the marriage.

4.   Irretrievable break-down of marriage as ground of divorce.—(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—

(a)

that the parties have not lived together as husband and wife for a continuous period of at least one year immediately prior to the date of the institution of the divorce action;

(b)

that the defendant has committed adultery and that the plaintiff finds it irreconcilable with a continued marriage relationship; or

(c)

that the defendant has in terms of a sentence of a court been declared an habitual criminal and is undergoing imprisonment as a result of such sentence,

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 reconciliation.

(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.   Mental illness or continuous unconsciousness as grounds of divorce.—(1)  A court may grant a decree of divorce on the ground of the mental illness of the defendant if it is satisfied—

(a)

that the defendant in terms of the Mental Health Act, 1973 (Act No. 18 of 1973)—

(i)

has been admitted as a patient to an institution in terms of a reception order;

(ii)

is being detained as a State patient at an institution or other place specified by the Minister of Correctional Services; or

[Sub-para. (ii) amended by s. 4 of Act No. 18 of 1996.]

(iii)

is being detained as a mentally ill convicted prisoner at an institution,

[Sub-para. (iii) amended by s. 4 of Act No. 18 of 1996.]

and that he has, for a continuous period of at least two years immediately prior to the institution of the divorce action, not been discharged unconditionally as such a patient, State patient or mentally ill prisoner; and

(b)

after having heard the evidence of at least two psychiatrists, of whom one shall have been appointed by the court, that the defendant is mentally ill and that there is no reasonable prospect that he will be cured of his mental illness.

[Sub-s. (1) amended by s. 4 of Act No. 18 of 1996.]

(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—

(a)

that the defendant’s unconsciousness has lasted for a continuous period of at least six months immediately prior to the institution of the divorce action; and

(b)

after having heard the evidence of at least two medical practitioners, of whom one shall be a neurologist or a neurosurgeon appointed by the court, that there is no reasonable prospect that the defendant will regain consciousness.

(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.

[Sub-s. (5) amended by s. 4 of Act No. 18 of 1996.]

5A.   Refusal to grant divorce.—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.

[S. 5A inserted by s. 1 of Act No. 95 of 1996.]

6.   Safeguarding of interests of dependent and minor children.—(1)  A decree of divorce shall not be granted until the court—

(a)

is satisfied that the provisions made or contemplated with regard to the welfare of any minor or dependent child of the marriage are satisfactory or are the best that can be effected in the circumstances; and

(b) if an enquiry is instituted by the Family Advocate in terms of section 4 (1) (a) or (2) (a) of the Mediation in Certain Divorce Matters Act, 1987, has considered the report and recommendations referred to in the said section 4 (1).

[Sub-s. (1) substituted by s. 6 of Act No. 24 of 1987.]

(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.   Division of assets and maintenance of parties.—(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.

[Sub-s. (2) substituted by s. 36 (a) of Act No. 88 of 1984.]

(3)  A court granting a decree of divorce in respect of a marriage out of community of property—

(a)

entered into before the commencement of the Matrimonial Property Act, 1984, in terms of an antenuptial contract by which community of property, community of profit and loss and accrual sharing in any form are excluded; or

(b)

entered into before the commencement of the Marriage and Matrimonial Property Law Amendment Act, 1988, in terms of section 22 (6) of the Black Administration Act, 1927 (Act No. 38 of 1927), as it existed immediately prior to its repeal by the said Marriage and Matrimonial Property Law Amendment Act, 1988,

may, subject to the provisions of subsections (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.

[Sub-s. (3) added by s. 36 (b) of Act No. 88 of 1984 and substituted by s. 2 (a) of Act No. 3 of 1988.]

(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.

[Sub-s. (4) added by s. 36 (b) of Act No. 88 of 1984.]

(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—

(a)

the existing means and obligations of the parties, including any obligation that a husband to a marriage as contemplated in subsection (3) (b) of this section may have in terms of section 22 (7) of the Black Administration Act, 1927 (Act No. 38 of 1927);

(b)

any donation made by one party to the other during the subsistence of the marriage, or which is owing and enforceable in terms of the antenuptial contract concerned;

(c)

any order which the court grants under section 9 of this Act or under any other law which affects the patrimonial position of the parties; and

(d)

any other factor which should in the opinion of the court be taken into account.

[Sub-s. (5) added by s. 36 (b) of Act No. 88 of 1984 and substituted by s. 2 (b) of Act No. 3 of 1988.]

(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.

[Sub-s. (6) added by s. 36 (b) of Act No. 88 of 1984.]

(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—

(i)

was paid over or awarded to another party; or

(ii)

for the purposes of an agreement contemplated in subsection (1), was accounted in favour of another party.

(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.

[Sub-s. (7) added by s. 2 of Act No. 7 of 1989.]

(8)  Notwithstanding the provisions of any other law or of the rules of any pension fund—

(a)

the court granting a decree of divorce in respect of a member of such a fund, may make an order that—

(i)

any part of the pension interest of that member which, by virtue of subsection (7), is due or assigned to the other party to the divorce action concerned, shall be paid by that fund to that other party when any pension benefits accrue in respect of that member;

(ii)

the registrar of the court in question forthwith notify the fund concerned that an endorsement be made in the records of that fund that that part of the pension interest concerned is so payable to that other party and that the administrator of the pension fund furnish proof of such endorsement to the registrar, in writing, within one month of receipt of such notification;

[Sub-para. (ii) substituted by s. 11 of Act No. 55 of 2003.]

(b)

any law which applies in relation to the reduction, assignment, transfer, cession, pledge, hypothecation or attachment of the pension benefits, or any right in respect thereof, in that fund, shall apply mutatis mutandis with regard to the right of that other party in respect of that part of the pension interest concerned.

[Sub-s. (8) added by s. 2 of Act No. 7 of 1989.]

(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.

[Sub-s. (9) added by s. 1 of Act No. 44 of 1992.]

8.   Rescission, suspension or variation of orders.—(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.

[Sub-s. (1) substituted by s. 7 of Act No. 24 of 1987.]

(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.   Forfeiture of patrimonial benefits of marriage.—(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.   Costs.—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.   Procedure.—The procedure applicable with reference to a divorce action shall be the procedure prescribed from time to time by rules of court.

12.   Limitation of publication of particulars of divorce action.—(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—

(a)

for the purposes of the administration of justice;

(b)

in a bona fide law report which does not form part of any other publication than a series of reports of the proceedings in courts of law; or

(c)

for the advancement of or use in a particular profession or science.

(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.

[Sub-s. (3) substituted by s. 8 of Act No. 24 of 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.   Recognition of certain foreign divorce orders.—  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—

(a)

was domiciled in the country or territory concerned, whether according to South African law or according to the law of that country or territory;

(b)

was ordinarily resident in that country or territory; or

(c)

was a national of that country or territory.

[S. 13 amended by ss. 46 and 47 of Act No. 97 of 1986 and substituted by s. 7 of Act No. 3 of 1992.]

14.   Abolition of orders for restitution of conjugal rights and judicial separation.—It shall not be competent for a court to issue an order for the restitution of conjugal rights or for judicial separation.

15.   Application of Act.—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.   Amends section 5 of the Matrimonial Affairs Act, No. 37 of 1953, as follows:— paragraph (a) substitutes subsection (1); paragraph (b) substitutes subsection (2); paragraph (c) substitutes subsection (3); and paragraph (d) substitutes subsection (6).

17.   Amends section 72 of the Administration of Estates Act, No. 66 of 1965, by substituting that part of subsection (1) which precedes paragraph (b) thereof.

18.   Repeal of laws.—The laws mentioned in the Schedule are hereby repealed to the extent set out in the third column of the Schedule.

19.   Short title and commencement.—This Act shall be called the Divorce Act, 1979, and shall come into operation on 1 July, 1979.

Schedule

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
Act No. 42 of 1974 Publications Act, 1974 [Repealed by s. 33 of Act No. 65 of 1996.]

MARRIAGE AND MATRIMONIAL PROPERTY LAW AMENDMENT ACT
NO. 3 OF 1988

[ASSENTED TO 25 FEBRUARY, 1988]
[DATE OF COMMENCEMENT: 2 DECEMBER, 1988]

(Afrikaans text signed by the State President)

ACT

To amend the marriage and matrimonial property law with regard to certain marriages; and to provide for matters connected therewith.

1.   Amends section 22 of the Black Administration Act, No. 38 of 1927, as follows:— paragraph (a) substitutes subsection (1); paragraph (b) substitutes subsection (2); paragraph (c) substitutes subsection (3); paragraph (d) substitutes subsection (5); paragraph (e) deletes subsection (6); and paragraph ( f ) substitutes subsection (7).

2.   Amends section 7 of the Divorce Act, No. 70 of 1979, as follows:—paragraph (a) substitutes subsection (3); and paragraph (b) substitutes subsection (5).

3.   Amends section 21 (2) of the Matrimonial Property Act, No. 88 of 1984, by substituting paragraph (a).

4.   Amends section 25 of the Matrimonial Property Act, No. 88 of 1984, as follows:— paragraph (a) deletes subsection (1); paragraph (b) substitutes subsection (2); and paragraph (c) adds subsection (3).

5.   Substitutes section 26 of the Matrimonial Property Act, No. 88 of 1984.

6.   Substitutes section 89 of the Deeds Registries Act, No. 47 of 1937.

7.   Amends section 102 (1) of the Deeds Registries Act, No. 47 of 1937, by substituting paragraphs (b) and (c) of the definition of “owner”.

8.   Short title and commencement.—This Act shall be called the Marriage and Matrimonial Property Law Amendment Act, 1988, and shall come into operation on a date fixed by the State President by proclamation in the Gazette.

DIVORCE AMENDMENT ACT
NO. 7 OF 1989

[ASSENTED TO 1 MARCH, 1989]
[DATE OF COMMENCEMENT: 1 AUGUST, 1989]

(English text signed by the Acting State President)

This Act was published in Government Gazette 11741 dated 15 March, 1989.

ACT

To amend the Divorce Act, 1979, so as to provide that a party to a divorce action may share in the pension interest of the other party; and to provide for matters connected therewith.

1.   Amends section 1 (1) of the Divorce Act, No. 70 of 1979, by adding the definitions of “pension fund”, “pension interest” and “rules”.

2.   Amends section 7 of the Divorce Act, No. 70 of 1979, by adding subsections (7) and (8).

3.   Short title and commencement.—This Act shall be called the Divorce Amendment Act, 1989, and shall come into operation on a date fixed by the State President by proclamation in the Gazette.

DIVORCE AMENDMENT ACT
NO. 44 OF 1992

[ASSENTED TO 7 APRIL, 1992]
[DATE OF COMMENCEMENT: 15 APRIL, 1992]

(English text signed by the State President)

This Act was published in Government Gazette 13921 dated 15 April, 1992.

ACT

To amend the Divorce Act, 1979, so as to confer certain powers upon a court in the case where such court grants a decree of divorce in respect of a marriage the patrimonial consequences of which are governed by the law of a foreign state.

1.   Amends section 7 of the Divorce Act, No. 70 of 1979, by adding subsection (9).

2.   Short title.—This Act shall be called the Divorce Amendment Act, 1992.

DIVORCE AMENDMENT ACT
NO. 95 OF 1996

[ASSENTED TO 12 NOVEMBER 1996]
[DATE OF COMMENCEMENT: 22 NOVEMBER 1996]

(English text signed by the President)

This Act was published in Government Gazette 17605 dated 22 November, 1996.

ACT

To amend the Divorce Act, 1979, so as to empower a court to refuse to grant a decree of divorce if it appears to the court that the spouses are bound by their religion to effect a divorce in accordance with their religion before a decree of divorce will have full effect; and to provide for matters connected therewith.

1.   Inserts section 5A in the Divorce Act, No. 70 of 1979.

2.   Short title.—This Act shall be called the Divorce Amendment Act, 1996.

DIVORCE COURTS AMENDMENT ACT
NO. 65 OF 1997

[ASSENTED TO 13 NOVEMBER, 1997]
[DATE OF COMMENCEMENT: 6 APRIL, 1998]

(English text signed by the President)

This Act has been updated to Government Gazette 18824 dated 6 April, 1998.

ACT

To amend the Black Administration Act, 1927, Amendment Act, 1929, so as to make courts established in terms of section 10 of that Act accessible to all; to extend the operation of that Act to the entire national territory of the Republic; and to substitute the short title of that Act; and to provide for matters connected therewith.

Preamble.—The divorce courts established in terms of section 10 of the Black Administration Act, 1927, Amendment Act, 1929, are competent to hear and adjudicate upon lawsuits relating to divorce and the nullity of marriages which involve persons belonging to one particular population group.

The Bill of Rights contained in Chapter 2 of the Constitution of the Republic of South Africa, 1996, enshrines the rights of all persons in the country, and confirms the democratic values of human dignity, equality and freedom. The law as so enshrined binds the legislature, the executive authority, the judiciary and all organs of State.

The recognition of the said rights and the application of the said democratic values require that all people in the country should be dealt with on an equal basis in relation to the status, standard and accessibility of judicial institutions which have been established in the country.

1.   Amends section 10 of the Black Administration Act, 1927, Amendment Act, No. 9 of 1929, as follows:—paragraph (a) substitutes subsection (1); paragraph (b) substitutes subsection (3) (b) and (c); paragraph (c) substitutes the expression “State President” in subsection (4) (a); paragraph (d) substitutes subsection (4) (b) and inserts subsection (4) (bA); paragraph (e) substitutes subsection (5); paragraph ( f ) substitutes subsection (6); and paragraph (g) substitutes subsection (7).

2.   Substitutes section 11 of the Black Administration Act, 1927, Amendment Act, No. 9 of 1929.

3.   Extension of Act 9 of 1929.—The application of the principal Act is hereby extended to the entire national territory of the Republic.

4.   Amends section 1 of the Divorce Act, No. 70 of 1979, by substituting the definition of “court”.

5.   Short title.—This Act shall be called the Divorce Courts Amendment Act, 1997, and shall come into operation on a date fixed by the President by proclamation in the Gazette.

JUDICIAL MATTERS SECOND AMENDMENT ACT
NO. 55 OF 2003

[ASSENTED TO 25 MARCH, 2004]
[DATE OF COMMENCEMENT: 31 MARCH, 2005]

(Unless otherwise indicated)

(English text signed by the President)

This Act has been updated to Government Gazette 28391 dated 11 January, 2006.

as amended by

Judicial Matters Amendment Act, No. 22 of 2005

[with effect from 11 January, 2006, unless otherwise indicated]

ACT

To amend the Administration Amendment Act, 1929, so as to eliminate any uncertainty relating to the appointment of presiding officers of Divorce Courts in an acting, temporary or permanent capacity; to amend the Insolvency Act, 1936, so as to further regulate agreements providing for termination and netting of certain unperformed obligations and obligations in respect of assets transferred as collateral security in the event of sequestration; to amend the Prevention of Counterfeiting of Currency Act, 1965, so as to make further provision regarding the evidentiary burden of proof on an accused person; to amend the Criminal Procedure Act, 1977, so as to ensure the consideration of a pre-trial services report in respect of bail proceedings; to further regulate correctional supervision as a sentencing option in certain circumstances; to make provision for a complainant to make representations with regard to the placement of accused persons on parole and to set out the duties of such complainant; and to make provision for the submission of a report to Parliament containing certain particulars in respect of accused persons whose trials have not commenced and who have been in custody for a particular period of time; to amend the Attorneys Act, 1979, so as to provide for the mandatory attendance of a legal practice management course by certain attorneys; to amend the Divorce Act, 1979, so as to make further provision regarding pension benefits in respect of the division of assets and maintenance of parties; to amend the Sheriffs Act, 1986, so as to effect a change of name; to amend the Mediation in Certain Divorce Matters Act, 1987, so as to prescribe the circumstances in which a Family Advocate may intervene in maintenance and domestic violence proceedings; to amend the Maintenance Act, 1998, so as to provide for the consideration by a court of the report and recommendations of a Family Advocate at a maintenance enquiry; to further regulate the payment of a maintenance benefit by a third party; and to extend maintenance orders by including maintenance orders made by High Courts and Divorce Courts in certain circumstances; to amend the Domestic Violence Act, 1998, so as to provide for the consideration by a court of the report and recommendations of a Family Advocate; to amend the Promotion of Access to Information Act, 2000, so as to extend the period within which the South African Human Rights Commission must compile a guide to assist persons who wish to gain access to information; to make provision regarding the exclusion of the Judicial Service Commission from the application of that Act in certain circumstances; to extend the period of time within which the rules of procedure must be made; to further regulate the institution of legal proceedings in terms of the Act in a court; to make provision regarding the failure to comply with certain provisions of the Act; and to sanction the punishment for failure to comply with certain regulations; to amend the Promotion of Administrative Justice Act, 2000, so as to adapt the definition of “administrative action”; to extend the period of time within which the rules of procedure for judicial review must be made; and to further regulate the institution of legal proceedings in terms of the Act in a court; to amend the Promotion of Equality and Prevention of Unfair Discrimination Act, 2000, so as to further regulate the publication of a notice altering the boundaries of an equality court; and to make provision for the delegation of certain powers; to amend the Cross-Border Insolvency Act, 2000, so as to regulate the position of legal proceedings when a notice designating a State for the purposes of that Act is withdrawn; to amend the Judges’ Remuneration and Conditions of Employment Act, 2001, so as to address a technical problem during the enactment of the Judicial Officers (Amendment of Conditions of Service) Act, 2003; and to make provision regarding pensions paid to retired judges and to surviving spouses of retired judges; to amend the Judicial Officers (Amendment of Conditions of Service) Act, 2003, so as to address a technical problem during the enactment of that Act; and to provide for matters connected therewith.

BE IT ENACTED by the Parliament of the Republic of South Africa, as follows:—

1.   Amends section 10 of the Administration Amendment Act, No. 9 of 1929, as follows:—paragraph (a) substitutes subsection (3) (b); and paragraph (b) inserts subsection (3A).

2.   Substitutes section 35B of the Insolvency Act, No. 24 of 1936.

3.   Amends section 4 of the Prevention of Counterfeiting of Currency Act, No. 16 of 1965, by substituting subsection (2).

4.   Amends section 60 of the Criminal Procedure Act, No. 51 of 1977, by inserting subsection (2A).

5.   Amends section 276 of the Criminal Procedure Act, No. 51 of 1977, by substituting subsection (3).

6.   Inserts section 299A in the Criminal Procedure Act, No. 51 of 1977.

7.   Amends section 342A of the Criminal Procedure Act, No. 51 of 1977, by adding subsection (7).

8.   Insertion of section 13B in Act 53 of 1979.—The following section is hereby inserted in the Attorneys Act, 1979, after section 13A:

“Certain attorneys to complete training in legal practice management

13B.   After the commencement of the Judicial Matters Second Amendment Act, 2003, every attorney who, for the first time, practises as a partner in a firm of attorneys or who practises on his or her own account, must—

(a)

within the period contemplated in section 74 (l) (dA); and

(b)

after payment of the fee prescribed in terms of section 80 (1) (i),

complete a legal practice management course approved by the council of the province in which he or she practises.”.

(Date of commencement to be proclaimed.)

9.   Amendment of section 74 of Act 53 of 1979, as amended by section 26 of Act 87 of 1989 and section 18 of Act 115 of 1993.—Section 74 of the Attorneys Act, 1979, is hereby amended by the insertion in subsection (1) after paragraph (d) of the following paragraph:

“(dA)  legal practice management courses to be completed by attorneys as contemplated in section 13B and determine the period within which such courses must be completed;”.

(Date of commencement to be proclaimed.)

10.   Amendment of section 80 of Act 53 of 1979, as amended by section 10 of Act 108 of 1984, section 19 of Act 115 of 1993 and section 12 of Act 104 of 1996.—Section 80 of the Attorneys Act, 1979, is hereby amended by the addition to subsection (1) of the following paragraph:

“(i)

the completion of legal practice management courses as contemplated in section 13B.”.

(Date of commencement to be proclaimed.)

11.   Amends section 7 (8) (a) of the Divorce Act, No. 70 of 1979, by substituting subparagraph (ii).

12.   Amends section 1 of the Sheriffs Act, No. 90 of 1986, by substituting the definition of “Board”.

13.   Substitutes section 7 of the Sheriffs Act, No. 90 of 1986.

14.   Substitutes the long title of the Sheriffs Act, No. 90 of 1986.

15.   Amends section 5 (1) of the Mediation in Certain Divorce Matters, Act No. 24 of 1987, by inserting paragraph (dA).

16.   Amends section 10 of the Maintenance Act, No. 99 of 1998, by inserting subsection (1A).

17.   Amends section 16 (2) of the Maintenance Act, No. 99 of 1998, by substituting paragraph (a).

18.   Amends section 26 of the Maintenance Act, 99 of 1998, as follows:—paragraph (a) substitutes subsection (1) (a); and paragraph (b) substitutes subsection (2) (a).

19.   Amends section 5 of the Domestic Violence Act, No. 116 of 1998, by inserting subsection (1A).

20.   Amends section 10 of the Promotion of Access to Information Act, No. 2 of 2000, by substituting subsection (1).

21.   Substitutes section 12 of the Promotion of Access to Information Act, No. 2 of 2000.

22.   . . . . . .

[S. 22 repealed by s. 18 of Act No. 22 of 2005.]

23.   Amends section 79 of the Promotion of Access to Information Act, 2 of 2000, as follows:—paragraph (a) substitutes in subsection (1) the words preceding paragraph (a); and paragraph (b) substitutes subsection (2).

24.   Substitutes section 90 of the Promotion of Access to Information Act, No. 2 of 2000.

25.   Amends section 92 of the Promotion of Access to Information Act, No. 2 of 2000, by adding subsection (4).

26.   Amends section 1 of the Promotion of Administrative Justice Act, No. 3 of 2000, by substituting paragraph (gg) of the definition of “administrative action”.

27.   Amends section 7 of the Promotion of Administrative Justice Act, No. 3 of 2000, as follows:—paragraph (a) substitutes subsection (3); and paragraph (b) substitutes subsection (4).

28.   Amends section 16 (1) of the Promotion of Equality and Prevention of Unfair Discrimination Act, No. 4 of 2000, by substituting paragraph (c).

29.   Amends section 17 of the Promotion of Equality and Prevention of Unfair Discrimination Act, No. 4 of 2000, by adding subsection (4).

30.   Amends section 2 of the Cross-Border Insolvency Act, No. 42 of 2000, by adding subsection (5).

31.   Amends section 11 of the Judges’ Remuneration and Conditions of Employment Act, No. 47 of 2001, by substituting subsection (7).

32.   Amends section 16 (4) of the Judges’ Remuneration and Conditions of Employment Act, No. 47 of 2001, as follows:—paragraph (a) substitutes paragraphs (b) and (c); and paragraph (b) adds paragraphs (d), (e) and ( f )

33.   Repeals section 18 of the Judicial Officers (Amendment of Conditions of Service) Act, No. 28 of 2003.

34.   Short title and commencement.—This Act is called the Judicial Matters Second Amendment Act, 2003, and comes into operation on a date fixed by the President by proclamation in the Gazette.

COMMENCEMENT OF THIS ACT

Date of commencement

The whole Act/
Sections

Proclamation
No.

Government Gazette

Date of Government Gazette

31 March, 2005 The whole Act, except ss. 8, 9, 10 and 22 R.13 27406 22 March, 2005

DIVORCE ACT,
NO. 70 OF 1979

(Prior to amendment by Act No. 55 of 2003)

Section 7 (8) (a) (ii)

(ii)

an endorsement be made in the records of that fund that that part of the pension interest concerned is so payable to that other party;

DIVORCE ACT,
NO. 70 OF 1979

(Prior to amendment by Act No. 55 of 2003)

Section 7 (8) (a) (ii)

(ii)

an endorsement be made in the records of that fund that that part of the pension interest concerned is so payable to that other party;

(Prior to amendment by Act No. 65 of 1997)

Section 1, definition—“court”

“court” means the provincial or local division of the Supreme Court of South Africa, or a divorce court established under section 10 of the Black Administration Act, 1927, Amendment Act, 1929 (Act No. 9 of 1929), which has jurisdiction with respect to a divorce action;

(Prior to amendment by Act No. 18 of 1996)

Section 5 (1) (a) (ii) and (iii)

(ii)

is being detained as a President’s patient at an institution or other place specified by the Minister of Prisons; or

(iii)

is being detained as a mentally ill convicted prisoner at an institution or hospital prison for psychopaths,

Section 5 (1), the words following upon subparagraph (iii)

and that he has, for a continuous period of at least two years immediately prior to the institution of the divorce action, not been discharged unconditionally as such a patient, President’s patient or mentally ill prisoner; and

Section 5 (5)

(5)  For the purposes of this section the expressions “institution”, “mental illness”, “patient”, “President’s patient” and “reception order” shall bear the meaning assigned to them in the Mental Health Act, 1973.

(Prior to amendment by Act No. 3 of 1992)

Section 2 (1), (2) and (3)

(1)  A court shall have jurisdiction in a divorce action if—

(a)

the parties to the action are domiciled in the area of jurisdiction of the court on the date on which the action is instituted; or

(b)

the wife is the plaintiff or applicant and she is ordinarily resident in the area of jurisdiction of that court on the date on which the action is instituted and has been ordinarily resident in the Republic for a period of one year immediately prior to the said date and—

(i)

is domiciled in the Republic; or

(ii)

was domiciled in the Republic immediately before cohabitation between her and her husband ceased; or

(iii)

was a South African citizen or was domiciled in the Republic immediately prior to her marriage.

(2)  A court which has jurisdiction in terms of subsection (1) (b) 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 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.

Section 13

13.   Recognition of certain foreign divorce orders.—(1)  The validity of a decree of divorce granted in a country or territory in which the husband was not domiciled at the time of the granting of the decree shall be recognized by a court in the Republic if that country or territory has been designated by the Minister of Justice by notice in the Gazette for the purposes of the recognition of such decrees.

(2)  The Minister of Justice may designate a country or territory for the purposes of subsection (1) if he is satisfied that the law of that country or territory provides for the exercise of jurisdiction which substantially corresponds to the jurisdiction referred to in section 2 (1) (b) (ii) and (iii).

(3)  No notice shall be issued in terms of this section unless the Minister of Justice is satisfied that the law of the country or territory concerned makes sufficient provision for the recognition by the courts of that country or territory of a decree of divorce granted in the Republic in terms of a jurisdiction under section 2 (1) (b) (ii) or (iii).

(4)  A notice issued in terms of this section may be withdrawn at any time.

(Prior to amendment by Act No. 24 of 1987)

Section 6 (1)

(1)  A decree of divorce shall not be granted until the court is satisfied that the provisions made or contemplated with regard to the welfare of any minor or dependent child of the marriage are satisfactory or are the best that can be effected in the circumstances.

Section 8 (1)

(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.

Section 12 (3)

(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.

(Prior to amendment by Act No. 97 of 1986)

Section 13 (1), (2), (3) and (4)

(1)  The validity of a decree of divorce granted in a country or territory in which the husband was not domiciled at the time of the granting of the decree shall be recognized by a court in the Republic if that country or territory has been designated by the State President by proclamation in the Gazette for the purposes of the recognition of such decrees.

(2)  The State President may designate a country or territory for the purposes of subsection (1) if he is satisfied that the law of that country or territory provides for the exercise of jurisdiction which substantially corresponds to the jurisdiction referred to in section 2 (1) (b) (ii) and (iii).

(3)  No proclamation shall be issued in terms of this section unless the State President is satisfied that the law of the country or territory concerned makes sufficient provision for the recognition by the courts of that country or territory of a decree of divorce granted in the Republic in terms of a jurisdiction under section 2 (1) (b) (ii) or (iii).

(4)  A proclamation issued in terms of this section may be withdrawn at any time.

(Prior to amendment by Act No. 88 of 1984)

Section 7 (2)

(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, 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.

(Prior to amendment by Act No. 88 of 1984)

Section 7 (2)

(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, 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.

One comment on “The Divorce Act

  1. Hi, I was married to a Norwegian man in February 22nd 2001 in Norway, Oslo. We divorced in July 16th in South Africa. I have not received any pension benefit or any of our investments (which he denied we have) I have evidence of the investments. My attorney at the time did nothing to investigate my case. He is now a client of the attorney I had. Seems very strange to me.

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