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A contested divorce in South Africa arises when the spouses cannot agree on one or more material issues that must be resolved before the divorce can be finalised. The dispute may concern children, maintenance, property, accrual, pensions, businesses, disclosure or another part of the relief sought.
A contested divorce does not necessarily mean that both spouses object to being divorced.
Often, both people accept that the marriage is over but disagree about the consequences.
A spouse also cannot ordinarily keep a marriage legally intact simply by refusing to consent to the divorce. Where irretrievable breakdown is proved under the Divorce Act 70 of 1979, the court may grant the divorce even if the other spouse opposes it.
The important questions therefore become:
A contested divorce should be approached as a managed litigation process rather than simply as an argument between spouses.
Question | General position |
What makes a divorce contested? | One or more material issues remain genuinely disputed. |
Must both spouses agree to the divorce itself? | No. The court may grant a divorce if the legal requirements are proved. |
Does every contested divorce go to trial? | No. Settlement may occur at almost any stage before judgment. |
Is discovery normally important? | Often. Financial and documentary disclosure can be central where property, accrual, maintenance, businesses or other financial issues are disputed. |
Can I obtain temporary financial or parenting relief while the divorce continues? | Potentially. High Court Rule 43 and Regional Court Rule 58 provide procedures for specified interim matrimonial relief. |
Are experts required in every contested divorce? | No. Experts should be used where the disputed issue genuinely requires specialised evidence. |
How long does a contested divorce take? | There is no reliable universal period. The issues, disclosure, applications, experts, settlement prospects, trial readiness and court availability all affect timing. |
Will my spouse automatically pay my legal fees if I win? | No. Costs remain subject to the court’s discretion. |
Can a contested divorce later become uncontested? | Yes. If all material issues are settled, the matter can ordinarily proceed on an unopposed basis. |
A divorce becomes contested where one or more issues remain unresolved and require negotiation, further evidence or ultimately adjudication by the court.
For example, spouses may agree:
but disagree about whether one spouse should receive maintenance.
That unresolved maintenance issue can make the divorce contested.
Equally, the dispute may concern several complex matters simultaneously.
The word contested therefore describes the state of the litigation. It does not necessarily mean that the spouses are hostile, unreasonable or unwilling to negotiate.
The financial consequences of divorce depend partly on the matrimonial-property regime.
Potential disputes can involve:
A disagreement about value can be as important as a disagreement about ownership.
For example, both spouses may agree that one spouse owns shares in a private company but disagree substantially about what those shares are worth.
That is a different dispute from one concerning whether the shares form part of an accrual calculation.
A spouse should not be expected to negotiate a substantial financial settlement without sufficient information to understand the financial position.
Formal discovery is one of the principal litigation mechanisms for obtaining relevant documentary evidence.
In High Court actions, discovery is regulated principally by Rule 35 of the Uniform Rules of Court. Discovery requires disclosure of relevant documents within the applicable procedural framework, and relevance is determined by the issues raised in the pleadings.
Depending on the issues, relevant records may include:
Discovery is not an excuse for an unlimited search through the other spouse’s affairs.
The documents sought should relate to issues that are genuinely relevant to the litigation.
A concern that assets are being concealed should be investigated from evidence rather than assumption.
Possible warning signs may include:
Complexity itself does not prove concealment.
A person who owns several businesses, trusts or investment structures may simply have a complicated financial position.
The purpose of investigation is to establish the facts.
Where the estate is substantial or the financial structure is particularly complex, see MVA’s High-Net-Worth Divorce guidance.
Disputes involving children require particular care.
Potential issues can include:
Section 6 of the Divorce Act prevents a court from granting a divorce involving minor or dependent children until the court is satisfied that the arrangements concerning them are satisfactory or the best that can be achieved in the circumstances. The court retains its own judicial responsibility even where parents agree.
A contested children’s dispute should therefore not be reduced to which parent ‘wins’.
The court’s enquiry is directed at the applicable legal framework and the child’s interests.
Spousal maintenance can become a significant disputed issue.
One spouse may claim that they require maintenance after divorce while the other says that:
The outcome is not determined by a single formula.
The evidence concerning the marriage, financial circumstances, needs, means and applicable statutory considerations must be examined.
There is no responsible universal sequence for every matter, but a defended divorce generally develops through several recognisable stages.
A divorce action ordinarily begins with a summons and particulars of claim.
The pleadings identify the marriage, the basis of jurisdiction, the matrimonial-property position, the ground relied upon for divorce, relevant facts concerning children and the relief claimed.
The summons must then be served in accordance with the applicable rules.
The exact response period depends on the process, court and method of service. A person who has been served should therefore work from the actual summons rather than rely on a generic internet deadline.
If the defendant disputes the relief claimed, they may deliver a notice of intention to defend.
The matter then proceeds as defended litigation.
Ignoring the summons is not the same as contesting the divorce.
Where a defendant takes no procedural steps, the plaintiff may eventually seek relief on an undefended basis if the applicable requirements are met.
The defendant may deliver a plea dealing with the allegations in the particulars of claim.
A counterclaim may also be raised where the defendant seeks their own substantive relief.
Further pleadings may be required depending on the issues raised.
This stage matters because the pleadings define what the parties say the court must determine.
A poorly identified issue can create unnecessary litigation later.
A divorce can remain pending while spouses and children still need workable day-to-day arrangements.
A party may require temporary relief concerning maintenance, litigation costs, care of a child or contact with a child.
In High Court matrimonial proceedings, Rule 43 of the Uniform Rules of Court provides the procedural mechanism for specified interim matrimonial relief.
In Regional Court proceedings, Rule 58 performs the corresponding function and covers interim maintenance, a contribution towards costs, interim care and interim contact.
These are interim arrangements. They do not finally determine all the issues that will eventually be decided in the divorce.
Once the issues have been defined sufficiently, relevant documentary disclosure may become central.
The legal team should establish what evidence is actually required to prove or disprove the disputed issues.
For example:
Evidence should be gathered with a purpose. Volume does not necessarily equal strength.
Experts are not compulsory simply because the divorce is contested.
An expert should ordinarily answer a specialised question that cannot properly be resolved through ordinary factual evidence alone.
Depending on the case, specialists may include:
Before appointing an expert, it is useful to ask: What exact question must this expert answer, and will that answer materially assist the case?
Expert evidence can be expensive. Its scope should therefore be proportionate to the importance and value of the issue in dispute.
Contested does not mean that settlement has failed permanently.
The quality of a settlement depends on the quality of the information on which it is based.
A person should be cautious about settling a financial dispute before they understand material assets, liabilities or business interests.
On the other hand, litigation should not continue merely because the parties have become emotionally invested in fighting.
A sensible settlement can reduce cost, uncertainty and the burden of continued litigation.
A matter can settle:
Mediation can be useful where there is a genuine prospect that structured negotiation will narrow or resolve the dispute.
It does not require either party to abandon legitimate rights.
In High Court proceedings, Rule 41A of the Uniform Rules of Court forms part of the procedural framework dealing with mediation.
Mediation may be particularly useful where:
Not every matter is suitable for mediation at every stage. Where financial disclosure remains materially incomplete, resolving the disclosure problem may need to come first.
If the matter does not settle, it must be prepared properly for trial.
The purpose of pre-trial preparation is to narrow the issues and identify what the court genuinely needs to decide.
A trial date should not be treated as the point at which preparation begins.
Depending on the court and applicable directives, this can involve:
At trial, the parties present evidence on the issues that remain unresolved.
Witnesses may give evidence and be cross-examined.
Expert witnesses may testify where necessary and admissible.
Documents may be introduced into evidence.
The legal representatives make submissions on how the law should be applied to the evidence.
The court then determines those issues that the parties have not resolved themselves.
Some contested divorces require only a limited dispute to be tried. Others involve several days or substantially longer hearings because the financial or parenting issues are complex.
The litigation does not always end practically when the court grants the order.
Implementation may still involve transfer or sale of property, payment of an accrual claim, division of a joint estate, pension-fund steps, implementation of maintenance, company or share transactions, performance of settlement obligations or parenting arrangements.
Settlement and trial strategy should therefore consider implementation before an order is made.
An order that is theoretically attractive but practically difficult to execute can create a new dispute.
A spouse can defend the proceedings.
They can dispute whether the marriage has broken down irretrievably or oppose other relief.
They cannot, however, automatically prevent a divorce merely by saying: “I will not agree to it.”
Section 4 of the Divorce Act permits a decree of divorce where the court is satisfied that the marriage has broken down irretrievably and there is no reasonable prospect of restoring a normal marriage relationship.
The court determines whether the statutory ground has been established.
A person should not defend proceedings simply to delay the divorce or punish the other spouse.
But there can be legitimate reasons to defend the relief being sought.
Examples include where:
The objective should be to identify the actual dispute rather than oppose every aspect of the divorce merely because some issues are contested.
No.
A contested divorce does not require every issue to remain contested.
Spouses may progressively narrow the dispute.
For example, they may agree:
while leaving only spousal maintenance or a business valuation for determination.
Reducing the number of disputed issues can materially reduce legal work, expert costs and trial time.
There is no reliable universal timeframe.
Timing can be affected by:
Two contested divorces instituted on the same day can therefore finish at very different times.
The better approach is to identify the remaining procedural stages in the particular matter rather than rely on a generic number of months or years.
There is also no responsible single figure.
A contested divorce generally costs more than a straightforward unopposed divorce because substantially more legal work may be required.
Cost drivers can include:
For MVA’s current charging approach and the factors that affect fees, see How Much Does a Divorce Lawyer Cost in South Africa?
Not automatically.
Section 10 of the Divorce Act gives the divorce court a discretion regarding costs. The court is not bound simply to award costs to whichever party is described as successful. It may consider the parties’ means and relevant conduct and make the costs order it considers just.
A costs order should also not be confused with full reimbursement of everything paid to your own attorneys.
Some costs cannot be avoided where important rights genuinely require litigation. But unnecessary cost can often be reduced.
Give your legal team organised, complete information rather than requiring repeated reconstruction of the same facts.
A clear timeline can save substantial time where the dispute involves years of events, payments or transactions.
Do not spend large amounts litigating a point that will have little effect on the eventual financial or parenting outcome.
Delay can create avoidable correspondence, applications or missed opportunities.
Do not commission expensive reports before the precise question to be answered has been identified.
Settlement is not weakness. It is a commercial and legal decision about risk, evidence, cost and outcome.
A useful starting bundle may include:
You do not need every possible document before obtaining advice.
If you have already been served with court papers, tell the attorney immediately because procedural deadlines may already be running.
A contested divorce involving substantial or complex assets may need a more detailed financial strategy.
Relevant issues can include:
These matters fall within MVA’s High-Net-Worth Divorce cluster.
Not every contested divorce is a high-net-worth matter. The specialist financial approach becomes relevant where the nature or value of the assets genuinely justifies it.
International residence or foreign assets can introduce separate issues concerning:
A contested South African divorce involving another country should therefore be assessed together with MVA’s International Divorce guidance where appropriate.
No. A divorce is contested because material legal issues remain disputed. The spouses do not need to be hostile or acrimonious.
No. A defended case may settle at almost any stage before judgment.
Yes. If all material issues are resolved and properly recorded, the matter can ordinarily proceed on an unopposed basis.
They can defend the proceedings, but they cannot automatically prevent divorce merely by refusing to agree. The court determines whether the statutory ground for divorce has been proved.
Relevant financial disclosure may be required under the applicable litigation rules where the documents are relevant to the issues in dispute. In High Court proceedings, formal discovery is governed by Rule 35.
Potentially. Interim maintenance may be sought through the applicable interim matrimonial procedure, including Rule 43 in the High Court or Rule 58 in the Regional Court.
Not automatically. A forensic accountant may be useful where the financial records, transactions or disclosure issues genuinely require specialised analysis.
Sometimes that may be sensible. But a person should be cautious about making a substantial financial settlement where material information remains unavailable and the missing information could affect the decision.
Potentially, yes. The existing file must first be reviewed so that the legal team can understand the pleadings, evidence, deadlines, outstanding fees, counsel or expert involvement and existing strategy. Changing attorneys can itself create additional work, so the decision should be made for a substantive reason.
Martin Vermaak Attorneys Inc. acts in contested divorce and family-law litigation in South Africa.
Depending on the matter, our work may include:
The strategy should be proportionate to the dispute.
A contested divorce should not generate unnecessary litigation merely because litigation is possible.
If your divorce is already contested, you have been served with divorce papers, important financial information is missing, or you cannot reach agreement on children, maintenance or assets, a Strategy Session can be used to identify the issues in dispute, immediate deadlines, evidence required and appropriate next steps.
If you want a better understanding of the entire process, read
“The Divorce Process in South Africa“
Author: Martin Vermaak, B.Proc, LLB
Attorney of the High Court of South Africa | Director, Martin Vermaak Attorneys Inc. | Over 20 years’ experience in divorce and family law
This information has been prepared for general educational purposes only and is not intended to constitute legal, financial, tax or other professional advice.
South African divorce litigation is fact-specific. Procedure can differ between the High Court and Regional Court and may be affected by applicable rules, practice directives and the circumstances of the individual matter. Readers should obtain advice appropriate to their circumstances before acting on court papers, entering settlement terms or taking litigation steps.
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