Family Law

This is one of the divisions that we are most passionate about it.

The fact that you are viewing this page means that you are considering a divorce or are dealing with a complex family matter. From experience we can assure you of the importance of choosing the right divorce and family attorneys.

There are several interlinking variables to take into account when dealing with a divorce. Which means it is of great importance that your divorce is dealt with correctly from the start. We see too many clients approaching us years after their divorce, for the first time, to request amendments to their current divorce orders. If the divorce had been dealt with correctly from the onset, it would not be necessary for these clients to approach us for legal assistance


You deserve sound legal advice from the onset, in order for you to make informed decisions.

Do not listen to stories from friends or family or, even worse, accept legal advice from them. Friends and family are not divorce attorneys, and will only confuse you even more. We are experienced in the field and more than apt to deliver reliable legal services. This is your divorce and you, not anyone else, will be moving forward after your divorce. Make the right decision for the well-being of your future and contact us today for a consultation.


We can assist in divorce and maintenance matters, inter alia.



These services include, but are not limited to:
  • Opposed and unopposed divorces

  • Protection orders

  • Rule 43 – Interim applications for custody and maintenance while the opposed divorce is pending

  • Edictal citation – when your spouse lives in another country

  • Child and spousal maintenance

  • Primary residence and contact issues pertaining to the minor children

  • Antenuptial contracts

  • Family trusts

  • Wills


Divorce Proceedings

Divorce (or the dissolution of marriage) in South African law refers to the termination of a marital union, the cancelling of the legal duties and responsibilities of marriage and the dissolving of the bonds of matrimony between a married couple. Divorce is unlike annulment, which declares the marriage null and void. Divorce requires the sanction of a court in a legal process. The legal process of divorce may also involve issues of alimony spousal maintenance, child maintenance, child custody, distribution of property (assets) and the division of debt, if any.



Divorce in South Africa is dealt with by way of the Divorce Act of 1979. This act’s primary objective is the formulation of realistic rules for the dissolution of marriages: rules which make it possible to dissolve failed marriages in a way that results in the least possible disruption for the spouses and their minor children. Here, at P Smith Attorneys, it is always our paramount goal to see that each of our client’s divorces and/or family matters are dealt with, with the least possibility of disruption – not only for our clients, but also for children involved.

Customary-law marriages, whether entered into before or after the commencement of the Recognition of Customary Marriages Act, can (like common-law marriages) only be dissolved by a court order.


Grounds For Divorce

Under the 1979 Divorce Act, which governs common-law marriages, a decree of divorce may be granted only on one of the following three grounds:

  1. Irretrievable breakdown of the marriage.
  2. Incurable mental illness for a continuous period of at least two years.
  3. Continuous unconsciousness for a period of at least six months.


Irretrievable Breakdown of Marriage

The following principles apply only to the dissolution of a common-law marriage in terms of the Divorce Act. To obtain a decree of divorce on the ground of the irretrievable breakdown of the marriage, the plaintiff must satisfy the court that the marriage relationship between the parties has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between them. As was pointed out by Margo J in Naidoo v Naidoo, this test is both subjective and objective.

Section 4(2) of the Act sets out the circumstances which the court may accept as proof of irretrievable breakdown:

  • 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 institution of the divorce action

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

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



Non-cohabitation for One Year

It is clear that more is required for the purposes of this guideline than mere geographical separation between the spouses; there must have been a termination of the marital consortium. Non-cohabitation “as husband and wife” (or rather, as a married couple) within the meaning of section 4(2)(a) presumably includes a physical as well as a mental element: that is, the fact of separation and the intention of at least one of the spouses to terminate the marriage relationship.

In the usual case spouses cease to “live together as husband and wife” or as a married couple when they establish separate households, at least one of them having the intention to put an end to their marriage relationship by such a move. However, the marital consortium may cease to exist even though the spouses continue to live together under one roof. There may be a complete breakdown in real communication between them, and they may no longer have a sexual relationship with each other, for example, even though they continue to reside in the same home. On the other hand, the mere fact that the spouses are physically separated from each other for a period of time does not necessarily mean that they are not living together as married couple. As long as both spouses continue to recognise their marriage “in word and deed,” the marital consortium between them continues to exist.


Adultery by the Defendant which the Plaintiff finds Irreconcilable with a Continued Marriage Relationship

There must be a causal connection between the defendant’s adultery and the fact that the plaintiff finds it impossible to continue with the marriage. Usually, the mere fact that the plaintiff institutes divorce proceedings would appear to be sufficient evidence of this causal link, but there may be some doubt in this regard if the plaintiff has connived at or condoned the defendant’s adultery.

Your Children and your Divorce

Child custody and guardianship are legal terms which are used to describe the legal and practical relationship between a parent and his or her child, such as the right of the parent to make decisions for the child, and the parent’s duty to care for the child.

Following ratification of the United Nations Convention on the Rights of the Child, terms such as “residence” and “contact” have superseded the concepts of “custody” and “access”. Instead of a parent having “custody” of or “access” to a child, a child is now said to “reside” or have “contact” with a parent.

Residence and contact issues typically arise in proceedings involving divorce (dissolution of marriage), annulment and other legal proceedings where children may be involved. In most instances the issue of which parent the child will reside with is determined in accordance with the best interests of the child standard.


Sole Physical Custody

Sole custody means that a child shall reside with and be under the supervision of one parent, subject to the power of the court to order visitation in respect of the other parent (contact towards the minor child). Sole custody involves the day-to-day care of a child and establishes where a child will live. A parent with sole custody has the right to have his/her child live with him/her. The other parent is said to be the non-custodial parent, and may have visitation rights. Our courts do not normally grant sole custody easily as the courts believe it best for the child to grow up by having a strong relationship with both parents.

With this being said, sole custody is mainly awarded to one parent where there is neglect or abuse on the part of one of the parents towards the minor child. Drug and alcohol abuse on the part of a parent also plays a role when the court has to consider granting sole custody to a specific parent.



Joint Custody

Joint physical custody is a form of custody whereby custody of a child is awarded to both parties. In joint custody, both parents are custodial parents and neither parent is a non-custodial parent; in other words, the child has two custodial parents.

We also recognise two forms of joint custody: joint physical custody, and joint legal custody. In joint legal custody, both parents share the ability to have access to educational, health, and other records, and have equal decision-making status where the welfare of the child is concerned. The principle of what is in the best interest of the child is also paramount in this regard.

With joint physical custody, which would include joint physical care, actual lodging and care of the child is shared according to the court-ordered custody schedule (also known as a parenting plan).

With joint custody equal shared parenting could be a possibility, however in most cases, joint physical custody creates an obligation to provide each of the parents with “significant periods” of physical custody so as to assure the child of “frequent and continuing contact” with both parents. These so-called “periods of custody” would be defined by way of the parenting plan, which would be made an order of court, normally on the day of divorce.

It is important to note that joint physical custody and joint legal custody are different aspects of custody, and the determination thereof is often made separately.



The Children’s Act Of 2005

The Children’s Act, 2005 (Act No. 38 of 2005) is an act of the parliament of South Africa that consolidates and reforms the law on matters related to children. It deals with topics including the age of majority, paternity, custody, child support, guardianship, parenting plans, children’s courts, day care and child protection.

Some provisions of the act, including the reduction of the age of majority from 21 to 18, came into force and effect on 1 July 2007, while the rest came into force on 1 April 2010. By way of the Children’s Act, more specifically Chapter 10 thereof, the views of the minor child can now be taken into consideration when it pertains to the well-being of the specific child. Of course with this being said the age and level of development and of the minor child will also be taken into consideration when reflexion and due consideration is given to the opinion of a minor child.



“How much should I be paying?”

This is often the response from the non-custodial parent when he or she goes from ‘married with children’ to ‘divorced and paying maintenance’. The issue of child maintenance – basically, the obligation of parents to provide their children with financial support for food, housing, education, clothes, healthcare, is normally a tricky issue and in practice we find that the custodial parent feels he or she is receiving too little and the non-custodial parent feels he or she is paying too much. [add link please:]

How should the maintenance amount be calculated?

The monetary amount of maintenance is normally dealt with at the time of a divorce, when “primary care” and “primary residence” of the child or children is also decided.

Deciding how much maintenance should be paid is, theoretically, simple. A court will look at the reasonable financial needs of the children involved, bearing in mind the family’s pre-divorce standard of living; then, each parent must provide for the children according to his or her means (what he or she earns and spends) on a pro-rata (proportional) basis. It’s obviously vital to have an accurate idea of what each parent earns and spends monthly, and here is often where the trouble starts. In this regard it is also important to have the actual invoices and and/or slips (proof of payment) at hand. This will make the calculation process much easier and if one considers that any court matter is dealt with by way of evidence – i.e. one would have to prove the actual expenses of the children, the amount requested for maintenance cannot merely be an estimate.

Only once the need of the children (monthly expenses) have been established will one start to study the pro-rata income of each parent. The expenses of the children will be calculated by way of a pro-rata ratio and one would be able to establish the liability of each parent in respect of the monthly maintenance.

The specific legislation that regulates maintenance is The Divorce Act 70 of 1979 (with amendments), the Maintenance Act 99 of 1998 (with amendments) and the Children’s Act 38 of 2005 (with recent amendments) regulate the payment of maintenance.