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Divorce Act 1979

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[Last checked: 15 November 2024.*]

*The last time this Act was reviewed for updates.

DIVORCE ACT 70 OF 1979

[Updated to 11 October 2024.**]

**Date of last changes incorporated into this Act.

 

________________________

English text signed by the President

Assented to 20 November 2001

__________________________

 

Published: G. 6506 of 15 June 1979

Commencement: 1 July 1979

 

Amended by

Matrimonial Property Act 88 of 1984 (G. 9322, with effect from 1 November 1984 [Proc 158, G. 9413]),

Transfer of Powers and Duties of the State President Act 97 of 1986 (G. 10438, with effect from 3 October 1986 [Proc 185, G. 10475]),

Mediation in Certain Divorce Matters Act 24 of 1987 (G. 10795, with effect from 1 October 1990 [Proc 181, G. 12778]),

Marriage and Matrimonial Property Law Amendment Act 3 of 1988 (G. 11171, with effect from 2 December 1988 [Proc 203, G. 11596]),

Divorce Amendment Act 7 of 1989 (G. 11741, with effect from 1 August 1989 [Proc 141, G. 12030]),

Domicile Act 3 of 1992 (G. 13817, with effect from 1 August 1992 [Proc 76, G. 14166]),

Divorce Amendment Act 44 of 1992 (G. 13921, with effect from 15 April 1992),

Justice Laws Rationalisation Act 18 of 1996 (G. 17129, with effect from 1 April 1997 [Proc 23, G. 17849]),

Films and Publications Act 65 of 1996 (G. 17560, with effect from 16 January 1998 [Proc 3, G. 18633]),

Divorce Amendment Act 95 of 1996 (G. 17605, with effect from 22 November 1996),

Divorce Courts Amendment Act 65 of 1997 (G. 18451, with effect from 6 April 1998 [Proc 39, G. 18824]),

Judicial Matters Second Amendment Act 55 of 2003 (G. 26206, with effect from 31 March 2005 [Proc 13, G. 27406]),

Jurisdiction of Regional Courts Amendment Act 31 of 2008 (G. 31579, with effect from 9 August 2010 [Proc 41, G. 33448]),

Judicial Matters Amendment Act 12 of 2020 (G. 43831),

Divorce Amendment Act 1 of 2024* (G. 50651, with effect from 14 May 2024)

*Note: Section 6 of Act 1 of 2024 reads as follows:

6.    Application

This Act applies to all subsisting Muslim marriages, including a Muslim marriage—

(a)  which was terminated or dissolved in accordance with the tenets of Islam and where legal proceedings for the dissolution of the said Muslim marriage in terms of the Divorce Act, 1979 (Act No. 70 of 1979) have been instituted but not yet finalised; and

(b)  which subsisted as at 15 December 2014.

 

Uncommenced Amendments

Magistrates' Courts Amendment Act 120 of 1993 (G. 14986, with effect from 7 January 2000: sections 47 – 50, 53 [ProcR 133, G 20781 of 30 December 1999])

 

[NOTE: The administration, powers and functions of this Act are transferred to the Minister of Justice and Constitutional Development, effective immediately before the President assumed office on 19 June 2024 – Proc 199 / G. 51368 / 11 October 2024.]

 

ACT

 

To amend the law relating to divorce and to provide for incidental matters.

 

BE IT ENACTED by the State President, the Senate and the House of Assembly of the Republic of South Africa, as follows:—

 

ARRANGEMENT OF SECTIONS

 

1.       Definitions

2.       Jurisdiction

3.       Dissolution of marriage and grounds of divorce

4.       Irretrievable break-down of marriage as ground for 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.     Amendment of section 5 of Act 37 of 1953, as amended by section 2 of Act 13 of 1966

17.     Amendment of Section 72 of Act 66 of 1965, as amended by section 7 of Act 54 of 1970

18.     Repeal of laws

19.     Short title

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, or a court for a regional division contemplated in section 29(1B) of the Magistrates’ Courts Act, 1944 (Act 32 of 1944), which has jurisdiction with respect to a divorce action;

[“court” substituted by s 4 of Act 65 of 1997; amended by s 10(2) of Act 31 of 2008.]

 

Uncommenced amendment:

“court” means the provincial or local division of the Supreme Court of South Africa, or a family court established under section 2(k) of the Lower Courts Act, 1944 (Act No. 32 of 1944), which has jurisdiction with respect to a divorce action;

[“court” inserted by s 74 of Act 120 of 1993 with effect from a date to be proclaimed.]

 

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

 

(a)     An action pendente lite for an interdict or 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 for the costs of such action or to institute such action, or make such application, informa pauperis, or for the substituted service of process in, or the edictal citation of a party to, such action or such application;

 

Uncommenced amendment:

“Family Advocate” means any Family Advocate appointed under section 2(1) of the Mediation in Certain Divorce Matters Act, 1987 (Act No. 24 of 1987);

["Family Advocate" inserted by s 74 of Act 120 of 1993 with effect from a date to be proclaimed.]

 

“Muslim marriage” means a marriage entered into or concluded in accordance with the tenets of Islam;

[“Muslim marriage” inserted by s 1 of Act 1 of 2024 with effect from 14 May 2024.]

 

“pension fund” means a pension fund as defined in section 1(1) of the Pensions Fund Act, 1956 (Act 24 of 1956) irrespective of whether or not the provisions of that Act apply to the pension fund or not;

[“pension fund” inserted by s 1 of Act 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 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 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 55 of 1975), for the purposes of that Act;

[“pension interest” inserted by s 1 of Act 7 of 1989.]

 

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

[“rules” inserted by s 1 of Act 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 in filed or the notice is delivered in terms of the rules of the 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.

[S 2(1) amended by s 6(a) of Act 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.

[S 2(2) amended by s 6(b) of Act 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.

[S 2(3) amended by s 6(c) of Act 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, including a Muslim 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—

[S 3, words preceding (a), substituted by s 2 of Act 1 of 2024 with effect from 14 May 2024.]

 

(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 for divorce

 

(1)     A court may grant a decree of divorce on the ground of the irretrievable breakdown 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 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

[S 5(1)(a)(ii) amended by s 4 of Act 18 of 1996.]

 

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

 

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

[S 5(1)(a)(iii) amended by s 4 of Act 18 of 1996.]

 

(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.

 

(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.

[S 5(5) amended by s 4 of Act 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 the, 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 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

[S 6(1)(a) substituted by s 3(a) of Act 1 of 2024 with effect from 14 May 2024.]

 

(b)     if and 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).

[S 6(1) substituted by s 6 of Act 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 anyone 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, including a dependent child of a Muslim marriage, or the custody or guardianship of, or access to, a minor child of the marriage, including a minor child of a Muslim 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.

[S 6(3) substituted by s 3(b) of Act 1 of 2024 with effect from 14 May 2024.]

 

(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 anyone 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.

[S 7(2) substituted by s 36(a) of Act 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

Section 7(3)(a) Declaration of Unconstitutionality

EB (born S) v ER (born B) and Others; KG v Minister of Home Affairs and Others [2023] ZACC 32

Decided: 10 October 2023

 

Section 7(3)(a) (Case CCT 158/22) has been declared inconsistent with the Constitution and invalid to the extent that it fails to include marriages concluded on or after the commencement of the Matrimonial Property Act 88 of 1984 (Matrimonial Property Act), suspended for 24 months from 10 October 2023.

 

Pending remedial legislation section 7(3)(a) is to be read as excluding the words in strike-out below; and which shall not affect the legal consequences of any act done or omission or fact existing prior to this order relating to a marriage concluded on or after 1 November 1984:

 

“7(3)(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;”

 

Also, pending remedial legislation, the courts’ conclusions in both simultaneously decided matters CCT 158/22 and CCT 364/21, the Matrimonial Property Act 88 of 1984 is to be read as including, as section 36A, the following provision; and which shall have no effect on the validity of deceased estate that has been finally wound up by the date hereof:

 

“36 (1)     Where a marriage out of community of property as contemplated in paragraphs (a), (b) or (c) of subsection 7(3) of the Divorce Act, 1979 (Act 70 of 1979) is dissolved by the death of a party to the marriage, a court may, subject mutatis mutandis to the provisions of subsections 7(4), (5) and (6) of the said Divorce Act, and on application by a surviving party to the marriage or by the executor of the estate of a deceased spouse to the marriage as the case may be (hereinafter referred to as the claimant), and in the absence of agreement between the claimant and the other spouse or the executor of the deceased estate of the other spouse (hereinafter referred to as the respondent), order that such assets, or such part of the assets, of the respondent as the court may deem just, be transferred to the claimant.

(2)           For purposes of subsection (1), paragraph (a) of subsection 7(3) is to be read as excluding the following words: “before the commencement of the Matrimonial Property Act, 1984”.”

 

 

(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 38 of 1927), as it existed immediately prior to its repeal by the said Marriage and Matrimonial Property Law Amendment Act, 1988, or

 

(c)      entered into in terms of any law applicable in a former homeland, without entering into an antenuptial contract or agreement in terms of such law,

 

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.

[S 7(3) inserted by s 36(b) of Act 88 of 1984; substituted by s 2(a) of Act 3 of 1988; substituted by s 1 of Act 12 of 2020 with effect from 22 October 2020.]

Section 7(3) Declaration of Unconstitutionality

EB (born S) v ER (born B) and Others; KG v Minister of Home Affairs and Others [2023] ZACC 32

Decided: 10 October 2023

 

Section 7(3) (Case CCT 364/21) has been declared inconsistent with the Constitution and invalid to the extent that it fails to include the dissolution of marriage by death, suspended for 24 months from 10 October 2023.

 

Pending remedial legislation, the courts’ conclusions in both simultaneously decided matters CCT 158/22 and CCT 364/21, the Matrimonial Property Act 88 of 1984 is to be read as including, as section 36A, the following provision:

 

“36 (1)     Where a marriage out of community of property as contemplated in paragraphs (a), (b) or (c) of subsection 7(3) of the Divorce Act, 1979 (Act 70 of 1979) is dissolved by the death of a party to the marriage, a court may, subject mutatis mutandis to the provisions of subsections 7(4), (5) and (6) of the said Divorce Act, and on application by a surviving party to the marriage or by the executor of the estate of a deceased spouse to the marriage as the case may be (hereinafter referred to as the claimant), and in the absence of agreement between the claimant and the other spouse or the executor of the deceased estate of the other spouse (hereinafter referred to as the respondent), order that such assets, or such part of the assets, of the respondent as the court may deem just, be transferred to the claimant.

(2)           For purposes of subsection (1), paragraph (a) of subsection 7(3) is to be read as excluding the following words: “before the commencement of the Matrimonial Property Act, 1984”.”

 

(3A)   A court granting a decree of divorce in respect of a Muslim marriage, 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.

[S 7(3A) inserted by s 4(a) of Act 1 of 2024 with effect from 14 May 2024.]

 

(4)     An order under subsection (3) of (3A) 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.

[S 7(4) inserted by s 36(b) of Act 88 of 1984, amended by s 4(b) of Act 1 of 2024 with effect from 14 May 2024.]

 

(5)     In the determination of the assets or part of the assets to be transferred as contemplated in subsection (3) or (3A) 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—

[S 7(5), words preceding (a), substituted by s 4(c) of Act 1 of 2024 with effect from 14 May 2024.]

 

(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 38 of 1927);

 

(aA)   any contract or agreement between the parties in a Muslim marriage, where the husband is a spouse in more than one Muslim marriage;

[S 7(5)(aA) inserted by s 4(d) of Act 1 of 2024 with effect from 14 May 2024.]

 

(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 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.

[S 7(5) inserted by s 36(b) of Act 88 of 1984; substituted by s 2(b) of Act 3 of 1988.]

 

(6)     A court granting an order under subsection (3) of (3A) 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.

[S 7(6) inserted by s 36(b) of Act 88 of 1984, by s 4(e) of Act 1 of 2024 with effect from 14 May 2024.]

 

(7)    

(a)     In the determination of the matrimonial 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.

[S 7(7) inserted by s 2 of Act 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;

[S 7(8)(a)(ii) amended by s 11 of Act 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.

[S 7(8) inserted by s 2 of Act 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.

[S 7(9) inserted by s 1 of Act 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.

[S 8(1) substituted by s 7 of Act 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, including a Muslim 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.

[S 9(1) substituted by s 5 of Act 1 of 2024 with effect from 14 May 2024.]

 

(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.

 

Uncommenced amendment:

(2)      Subject to the rules of court in relation to divorce actions, any divorce action which is pending in the Supreme Court may at any stage of the proceedings be referred to a family court established under section 2(k) of the Lower  Courts Act, 1944 (Act No. 32 of 1944), having jurisdiction if the court may deem it desirable, and the court may, in  respect of such proceedings, make such order for costs as it may deem fit.

[S 11(2) added by s 74 of Act 120 of 1993 with effect from a date to be proclaimed]

 

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 judgement 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.

[S 12(3) substituted by s 8 of Act 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 recognised 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 s 46 and 47 of Act 97 of 1986; substituted by s 7 of Act 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.     Amendment of section 5 of Act 37 of 1953, as amended by section 2 of Act 13 of 1966

 

17.     Amendment of Section 72 of Act 66 of 1965, as amended by section 7 of Act 54 of 1970

 

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

 

This Act shall be called the Divorce Act, 1979, and shall come into operation on 1 July 1979.

 

Schedule

[Schedule amended by s 33 of Act 65 of 1996.]

 

No. and year of law

Short title

Extent of repeal

Act 32 of 1935

Act 22 of 1939

Act 17 of 1943

Act 35 of 1945

Act 37 of 1953

Act 70 of 1968

Divorce Laws Amendment Act, 1935

Matrimonial Causes Jurisdiction Act, 1939

Matrimonial Causes Jurisdiction Amendment Act, 1943

Matrimonial Causes Jurisdiction Act, 1945

Matrimonial Affairs Act, 1953

General Law Amendment Act, 1968

The whole

The whole

The whole

The whole

Sections 6, 7, 8. 9 and 10

Sections 21, 22 and 23