The Smart South African’s Guide to Divorce: Assets, Parenting & Maintenance

Getting Divorced in South Africa? Here’s What You Really Need to Know

Going through a divorce is never easy. Whether you’ve made the decision or are still weighing your options, chances are you're feeling overwhelmed, unsure, and maybe even scared of what lies ahead. It’s not just about heartbreak. Divorce is also a legal process. Without the right information, you could end up walking away with less than you deserve. Here’s what every South African spouse needs to know before making any big decisions.

1. Who Gets What? It All Comes Down to Your Marriage Contract

When it comes to dividing assets (and debts), your marriage contract sets the rules. You’re likely married under one of these systems:

·         In community of property: Everything is shared equally, including debt. It’s a straight 50/50 split.

·         Out of community of property with accrual: You each keep what was yours before the marriage, but anything you built up together gets shared.

·         Out of community of property without accrual: What’s yours is yours. What’s theirs is theirs. No sharing or splitting.

Regardless of which system you’re married under, you and your spouse can still enter into a settlement agreement. This is a written contract where you both agree on how your assets, debts, and responsibilities will be divided. It can also include arrangements for maintenance, parenting plans, and more. Once signed and made an order of court, it becomes legally binding. If you believe your spouse is unfairly benefiting from the estate, you may also be able to apply for a forfeiture order under the Divorce Act.

2. Spousal Maintenance Isn’t a Given. You’ll Need to Show Why It’s Fair

Many people assume they’ll automatically receive maintenance. That’s not the case. You’ll need to show the court why it’s fair and necessary, based on things like:

·         Whether you can support yourself

·         Your spouse’s income and financial position

·         The lifestyle you had during the marriage

·         Your age, health, and work history

If you’ve been financially dependent, you may also apply for interim maintenance to help you cope during the divorce process.

3. If You Have Kids, a Parenting Plan Is Essential

When children are involved, the law requires a Parenting Plan. But this isn’t just a piece of paper. It’s a guide for how you’ll continue raising your child together. It covers:

·         Where your child will live

·         How school, medical, and other major decisions will be made

·         When and how each parent will have contact

·         How communication will work going forward

It’s not about what’s convenient for you or your ex. It’s about what’s best for your child.

4. Both Parents Must Contribute Financially

Child maintenance isn’t optional. It’s a legal obligation, and both parents must contribute based on their income and the child’s needs. This includes:

·         School and medical expenses

·         Food, clothing, transport

·         Extracurricular activities

If one parent refuses to pay, the Maintenance Court can help you enforce your child’s rights.

5. Once You Sign a Settlement Agreement, It’s Final

It’s tempting to just sign and move on, especially when emotions are high. But take a moment. Once signed and made an order of court, a settlement agreement is binding. You can’t change your mind later unless:

·         You were pressured or forced (duress)

·         You were misled or deceived (fraud)

·         You didn’t have the mental capacity to understand what you were agreeing to

The good news is that you can still create a fair and legally sound settlement agreement — one that reflects your rights and your future goals. The key is to get the right guidance before you commit to anything. Never sign until you fully understand what it means for your future.

Don’t Go Through This Alone

Divorce isn’t just about paperwork. It’s about protecting your future, your finances, and your role as a parent.

I work with clients across South Africa, offering:

✔ Fixed-fee unopposed divorces

✔ Parenting plans and child contact arrangements

✔ Spousal and child maintenance claims

✔ Fair asset division, including pension splits