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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 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 … |