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Danelle Els Attorneys, Pretoria (2026)

03/09/2026

Considering Divorce? What You Need to Know

Divorce can feel complicated, particularly when you do not know what to expect.

On paper, the legal process appears relatively straightforward. In practice, however, the issues that have to be resolved between spouses, legal costs, electronic court processes and congested court rolls can all affect how quickly and easily a divorce is finalised.

Understanding the process — and your rights — before you start can help you make informed decisions and avoid unnecessary legal costs.

Unopposed or Opposed Divorce?

Divorces generally proceed on either an unopposed or opposed basis.

Unopposed Divorce

An unopposed divorce occurs where the spouses are able to reach agreement on the terms and consequences of their divorce.

This does not necessarily mean that they agree on everything from the outset. Negotiations may be required to resolve issues relating to their assets, liabilities, maintenance, pension interests and, where children are involved, care, contact and maintenance.

Once agreement is reached, the terms are recorded in a settlement agreement, which can ultimately be incorporated into the divorce order.

An unopposed divorce is generally quicker and more cost-effective because lengthy litigation and a trial can be avoided.

Opposed Divorce

An opposed divorce occurs where the spouses cannot agree on some or all of the consequences of their divorce.

Each spouse will ordinarily appoint his or her own attorney and their respective claims and defences are recorded in formal court documents known as pleadings.

The matter then proceeds through the litigation process and, if the disputes cannot be resolved, ultimately to trial.

Opposed divorce proceedings can be lengthy and carry substantially greater legal costs.

Importantly, an opposed divorce can settle at any stage. If the parties subsequently reach agreement, their settlement can be recorded and the matter can proceed towards finalisation on an unopposed basis.

How Does the Divorce Process Work?

A divorce action starts with the issuing of a summons, which must be personally served on the other spouse by the Sheriff.

If the divorce is defended, the defendant delivers a notice of intention to defend, followed by a plea and, where appropriate, a counterclaim. Further pleadings may follow.

Once pleadings have closed, an opposed matter proceeds through further litigation steps, which may include discovery, where relevant documents and other evidence are disclosed, followed by pre-trial procedures and ultimately a trial if settlement cannot be reached.

At trial, the court hears the evidence and determines those issues which the parties have been unable to resolve themselves.

⏱ DISCOVERY TO TRIAL

APPROXIMATELY 1–2 YEARS — SOMETIMES LONGER

The time periods reflected above relate to the procedural steps in an opposed divorce and should not be interpreted as an indication that the entire divorce will be finalised within those periods.

In practice, the period between the commencement of discovery and an eventual trial can be substantial. Depending on the circumstances of the matter, the steps required to prepare the case and the availability of the court, an opposed divorce may take approximately one to two years, and in some cases longer, to reach trial.

This is one of the reasons why meaningful settlement negotiations can remain important throughout the divorce process.

What needs to be decided in a divorce?

Getting divorced involves considerably more than simply ending the marriage.

One of the first questions your attorney will consider is:

How are you married?

Your matrimonial property regime plays an important role in determining the financial consequences of your divorce.

Depending on the circumstances of your marriage, consideration may need to be given to:

the division of movable and immovable assets;
liabilities and debts;
the accrual, where the marriage is subject to the accrual system;
pension interests and retirement benefits;
policies and investments;
maintenance between spouses; and
where children are involved, their care, primary residence, contact and maintenance.

What About the Accrual?

The Matrimonial Property Act provides, for example, where spouses are married out of community of property subject to the accrual system, the accrual of their respective estates becomes relevant when the marriage is dissolved.

In broad terms, the accrual system considers the growth in the respective estates during the marriage. Subject to the provisions of the Matrimonial Property Act and the parties’ antenuptial contract, the spouse whose estate shows the smaller accrual may have a claim against the spouse whose estate shows the greater accrual.

The calculation can be more complicated than it initially appears, particularly where assets are excluded in an antenuptial contract or questions arise regarding commencement values, liabilities or the value of assets.

It is therefore important to establish your matrimonial property regime and obtain a proper picture of both parties' financial positions before deciding how your divorce should be approached.

What about pension funds, policies & other assets?

Retirement interests should not be overlooked simply because the benefit has not yet been paid out to the member spouse.

Section 7 of the Divorce Act specifically regulates pension interests in divorce proceedings and, where its requirements are met, a pension interest may form part of the patrimonial consequences of the divorce.

Policies, investments and other financial products may similarly be relevant when determining the assets and financial position of the parties.

Can one spouse claim maintenance?

Spousal maintenance is not automatic.

Where the parties have not agreed on maintenance, section 7(2) of the Divorce Act allows the court to consider factors including the parties' existing and prospective means, earning capacities, financial needs and obligations, their ages, the duration of the marriage and their standard of living before divorce.

Whether maintenance should be claimed — and the nature and duration of that claim — therefore depends on the circumstances of the particular marriage.

What if there are children?

Where minor or dependent children are involved, their interests require separate and careful consideration.

Issues that may need to be addressed include:

parental responsibilities and rights;
care and primary residence;
contact with each parent; and
maintenance.
The Divorce Act requires the court to be satisfied that the arrangements made for minor or dependent children are satisfactory, or the best that can be achieved in the circumstances, before a decree of divorce is granted. The best interests of the child remain of paramount importance.

A divorce may end the marriage between the parents, but it does not end their responsibilities towards their children.

Redistribution claims and recent developments in our law

Your antenuptial contract should not be considered in isolation from developments in South African divorce law.

In the Constitutional Court matters of EB (born S) v ER (born B) and Others; KG v Minister of Home Affairs and Others, the Court considered the redistribution remedy contained in section 7(3) of the Divorce Act.

The judgment extended access to the redistribution remedy to certain spouses who were previously excluded from claiming redistribution

A redistribution order is, however, not automatic. It remains a discretionary remedy and the statutory requirements applicable to such a claim must be established.

This development illustrates why it is important to obtain advice based not only on your antenuptial contract, but also on the current legislation and case law in South Africa.

What if You Need Financial or Other Relief While the Divorce Is Pending?

An opposed divorce can take a considerable period of time to finalise. This raises an important question:

What happens while you are waiting for the divorce to be finalised?

A spouse does not necessarily have to wait until the final divorce order to obtain appropriate relief.

This is particularly important where there is a significant financial imbalance between the spouses. In some divorces, one spouse may control substantially greater financial resources than the other. Prolonged litigation can then place the financially weaker spouse at a considerable disadvantage, particularly where that spouse is responsible for the day-to-day needs of the children or does not have sufficient resources to fund the litigation.

Rule 43 – Interim Relief Pending Divorce

In High Court divorce proceedings, Rule 43 of the Uniform Rules of Court provides a mechanism through which a spouse may apply for interim relief while the divorce action is still pending.

Depending on the circumstances, a Rule 43 application may deal with:

interim maintenance for a spouse;
maintenance for minor children;
interim care and contact arrangements in respect of children; and
a contribution towards the legal costs of the divorce proceedings.
The purpose of this relief is not to determine the divorce itself. It provides an interim arrangement while the parties continue with the main divorce action.

What will my divorce cost?

There is no single answer.

Generally, an unopposed divorce in which the parties cooperate and reach a settlement will cost considerably less than prolonged opposed litigation.

Once a divorce becomes contested, the preparation of pleadings, correspondence, negotiations, discovery, court appearances and trial preparation all increase the professional time — and therefore the cost — involved.

This is why early legal advice and sensible settlement negotiations can be valuable.

But settling quickly should never mean settling without understanding your rights. In this regard you are referred to the article “Divorced – Don’t get trapped into settlement”.

A divorce order can have long-term consequences for your property, retirement interests, maintenance and children.

Before agreeing to the terms of your divorce, make sure you understand exactly what you are agreeing to.

Divorce may bring a marriage to an end, but the decisions made during the divorce process can affect your finances, your children and your future for many years to come.

Considering divorce?

Know your rights. Plan your next step. Protect your future.

Contact us today

19/08/2026

Relocation with a minor child after divorce

Often during a divorce proceeding where minor children are involved, one parent is named to be the primary caregiver of the minor child while the other parent will have the right to contact with the minor child. Subsequently, there is usually a court order governing the care and contact of the minor children. However, what will happen if the primary caregiver of the minor child wishes to relocate? Relocation would in most circumstances affect the contact rights of the other parent. How is this governed and when should the consent of the other parent be obtained?

Section 18 of the Children’s Act specifically regulates that consent is required when a party wishes to remove the minor child from the Republic of South Africa. There is a further clause in Section 31 which specifically states that a person holding parental responsibilities and rights should take the views of a child into consideration when making a decision that would affect the contact of the minor child with a co-holder of parental responsibilities and rights. However, there are no specific regulations in the Children’s Act regulating relocation within the Republic. Therefore, parties are necessitated to approach the High Court for relief in such situations.

The courts are concerned with whether the desire to relocate is genuine and reasonable and whether such relocation would serve the best interests of the minor child. The court would then specifically consider the nature and extent of the contact possible with the non-custodian parent if relocation is allowed. Usually, there is also an evaluation done by a psychologist in respect of the best interests of the minor children which the courts can then make use of to determine whether the relocation would be in the best interests of the minor children.

While the main consideration remains the best interests of the minor children, there are multiple factors that the courts take into consideration. The factors include the advantages and disadvantages of the relocation, the practical implications of such relocation, the purpose of the relocation and how the relocation would affect the minor children’s relationship with the non-custodian parent.

When considering the purpose of the relocation, the courts examine whether such relocation is genuine such as career opportunities or whether it is designed to restrict the other parent’s contact. The needs of the minor child will also be considered in that there should be continuity in the minor child’s education and a stable environment. Further, the relocating parent must show that reasonable arrangements have been made to maintain the minor child’s relationship with the other parent. This can be done by undertaking to pay for one return ticket a year for the minor child to visit the other parent or giving up their holiday contact to accommodate the other parent’s contact rights.

While the best interest of the minor child remains of paramount importance, the courts remain sensitive to the rights and needs of the parents. The courts will consider the interest if the relocating parent in that each party after a divorce should be free to create their own lives which often includes the need to relocate. The courts will also consider the interest of the non-relocating parent on how the relocation would affect their relationship with the minor child.

The process of relocation is a simple one if both parents agree to the relocation and the relocation is clearly in the best interest of the minor child. However, if one parent opposes the relocation, the parent wishing to relocate will need to obtain a court order allowing the relocation. It is also encouraged to make use of mediation in order to settle the dispute, but should it not succeed, the party who wants to relocate must then approach the court for an order in this regard.

Should you wish to relocate and require any assistance in this matter, please feel free to reach out to Danelle Els Attorneys at 012 111 0235.

By Nikite Pretorius – Candidate Attorney at Danelle Els Attorneys.

17/06/2026

How effective is your antenuptial contract now?

The purpose of entering into an antenuptial contract is mostly to regulate and choose the property system that you wish to apply to the marriage. This becomes especially important upon divorce or when one of the parties passes away. The question however remains, upon divorce, will your antenuptial contract always be given effect to?

In a recent Constitutional Court judgement, the court held that when it is just and equitable to do so, the courts may choose to vary from the agreement. This came about in the Greyling-case. The Greyling case challenged Section 7(3)(a) of the Divorce Act which allows a court to grant a redistribution order in respect of a marriage out of community of property 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. The Greyling case challenged this section based on the wording that the court may only grant a redistribution order where a marriage was entered into before 1984. They argued that this specification discriminated against parties who entered into a marriage after 1984 wherein they chose to exclude the accrual system.

The reason that the Divorce Act specifies that a redistribution order is only applicable to marriages entered into before the commencement of the Matrimonial Property Act is because of the new matrimonial property regime introduced by the Act. The accrual system only originated in 1984 in the Matrimonial Property Act which provided more protection to the vulnerable spouse upon divorce. The Divorce Act therefore wanted to protect spouses who did not have the option of the accrual system being applied to their marriage.

In the Greyling case, the parties got married out of community of property, excluding the accrual system. The couple got married in 1988 which meant that they specifically chose to exclude the accrual system. During the marriage, the wife primarily took care of the children and kept the household running while the husband continued to become a very successful farmer. In 2016, the couple instituted divorce proceedings. During this process, the validity of certain provisions in the Divorce Act came under scrutiny. The wife challenged the specific provision that states that a redistribution order may only be applied where a couple was married out of community of property before the Matrimonial Property Act came into existence.

The matter went to the Constitutional Court which finally found in favour of the wife. The court held that limiting the redistribution provision in the Divorce Act to marriages concluded before the Matrimonial Property Act, was unconstitutional as there was unfair discrimination based on the time when the couple entered into their marriage. The result of this decision is that now, couples may apply for a redistribution order irrespective of the time that they concluded their marriage. The Divorce Act should now be read as if the time limit was never a part of the provision.

This decision enforces equality between spouses as upon divorce, all relevant factors will be considered when deciding on whether a redistribution order should be granted. The court will consider all factors such as the standard of living, the contribution made by both spouses financially and otherwise as well as any other factors the court deems fit.

But what is the effect of this when initiating divorce proceedings? In the past, the court gave effect to the antenuptial contract, and the matrimonial property system as chosen by the parties. Now, however, the courts exercise their judicial discretion in a wide sense in that they may choose to deviate from the chosen system if it is determined to be in the interest of justice. This means that the court can completely overrule the matrimonial property system that has been chosen by the parties.

Therefore, whether parties chose to marry using the accrual system or not, courts may now apply any of the provisions set out in the Divorce Act regardless of when your marriage was entered into. The wide judicial discretion of the courts is aimed at promoting a just and equitable outcome for both spouses.

By Nikite Pretorius - Candidate Attorney at Danelle Els Attorneys

05/05/2026

PARENTAL ALIENATION IN A NUTSHELL

1. What is Parental Alienation?

Parental alienation is considered a concept that can be defined as the intentional or unintentional psychological manipulation of a minor child by one parent, causing the child to unnecessarily fear, disrespect, reject, hate, or distance themselves from the other parent and even from other family members.

Parental alienation is a silent but very serious issue in high-conflict divorces or separations and is globally recognised as a form of psychological abuse, which violates the UN Convention on Children’s Rights as well as the Universal Declaration of Human Rights.

To name but a few examples, parental alienation can include negative comments about the other parent, one parent belittling the other, limiting contact between the minor and the other parent, or creating an environment where minors feel they must “choose sides.” Some parents even go so far as to make false allegations of emotional, physical, or sexual abuse against the other parent.

2. Parental Alienation in South Africa

As opposed to countries like Mexico and Brazil, parental alienation in South Africa is not recognised as a specific statutory offence. Although South African courts and legislation are still developing their understanding of the concept of parental alienation and its implications, we can rely on both the Constitution and the Children’s Act 38 of 2005, which make it clear that the best interests of a minor child supersede all and are the top priority in any situation involving minors. Section 7 of the Children’s Act, among various other factors that should be considered when determining a minor’s best interests, specifically refers to the fact that a child has the right to a personal relationship with both parents and family members.

From a legal point of view, this kind of conduct has developing consequences that will come into effect as our courts increasingly acknowledge the impact of parental alienation on minor children.

3. Beyond the Legal Implications

In most cases of parental alienation, the alienating parent fails to realise that the real harm is done to the minor child. Due to the lack of mature reasoning in minors, parental alienation can cause emotional and psychological trauma, which may have both short-term and long-term effects.

3.1. Short-term effects may include:

a. Mental health problems such as severe anxiety, low self-esteem, and depression;

b. Behavioural issues such as substance abuse and aggression; and

c. A distorted sense of reality due to constant pressure and false narratives.

3.2. Long-term effects (in adulthood) may include:

a. Ongoing mental health problems such as depression and severe anxiety;

b. Identity issues and memory confusion; and

c. Relationship dysfunction, including difficulty trusting intimate partners and recognising unhealthy relationships.

In the matter of Richies v Richies 1981 (1) PH B4 (O), the Honourable Judge shared the following view during judgment:

“A parent who unnecessarily deprives a child of the opportunity to experience the affection of the other parent and breaks down the image of that parent in the eyes of the child is a selfish parent, robbing the child of what should be its heritage in order to salve his own wounds. Regrettably, parents wounded by marital conflict often lose objectivity and use as weapons the very children they profess to love more than life itself, causing further harm in the process.”

Although South African law still has a long road of development ahead in relation to parental alienation, it is important for parents going through a divorce or separation to educate themselves on what parental alienation is and how it affects a child’s emotional and psychological well-being. By understanding its effects, parents will be better equipped to identify and avoid harmful behaviours, support the development of healthy relationships with both parents and family members, and ultimately act in the child’s best interests. Well-informed parents are better able to co-parent responsibly, make sound decisions, and ensure stability and emotional security for their children.

Children deserve love, stability, and the freedom to maintain healthy relationships with both parents and extended family members—without conflict, pressure, or guilt.

4. Takeaway

At the end of the day, a divorce or separation ends a relationship between adults, not the responsibility of being a good parent. As legal practitioners, we encourage parents, while the law continues to develop, to rise above personal differences and focus on what truly matters: raising emotionally secure, well-supported children who can thrive as adults.

By Chiné de la Rey – Junior Associate Attorney at Danelle Els Attorneys Incorporated

22/04/2026

Getting Divorced – Don’t Get Trapped into Settlement!!!

Divorce is one of the most significant legal and personal transitions a person can face. When financial constraints make it difficult to appoint an attorney, many individuals turn to settlement negotiations as a quicker and more affordable option. While settlement can be effective, it also carries real risks if you do not fully understand your legal rights.

As a family law practitioner, I often see individuals who entered into settlements without proper advice, only to later realise that the agreement unfairly benefits one party. By then, correcting the situation is complex, costly, and sometimes impossible.

Here’s what you need to know before entering into any divorce settlement.

1. Understand Your Marital Regime:
Your marital regime forms the foundation of your financial rights and obligations upon divorce.
Each regime has different consequences for how assets and liabilities are divided.
Misunderstanding this can result in forfeiting substantial financial claims.
(Please refer to our webpage for more information on marital regimes.)

2. Minor Children – The Paramount Consideration:
Where minor children are involved, their best interests are paramount.
When negotiating a settlement, you must carefully consider:
• Primary residence (where the child will live)
• Contact arrangements with the non-resident parent
• Decision-making responsibilities (education, healthcare, religion)
• Maintenance requirements
• Holiday arrangements and special occasions (e.g. Mother’s Day, Father’s Day)
***Importantly, there is no “one-size-fits-all” contact regime in South Africa.

3. Spousal Maintenance – Know Your Rights:
Spousal maintenance is not automatic. It depends on various factors and is governed by the Divorce Act 70 of 1979.
There are generally two types:
• Rehabilitative maintenance – temporary support to allow a spouse to become self-supporting
• Permanent maintenance – ongoing support (less common and fact-specific)
It is further worthy to know that a spouse can only seek spousal maintenance once during the Divorce, if a spouse failed to seek spousal maintenance, one cannot seek same post divorce.

4. Your Patrimonial Claim
Your patrimonial claim relates to how assets and liabilities are divided.
This includes:
• Immovable property
• Investments
• Pension interests (often overlooked but highly significant)
• Business interests
• Debt allocation

The Danger of Settling Without Advice
Many individuals rush into settlement because they:
• Cannot afford legal fees
• Want to finalise the divorce quickly
• Feel pressured by their spouse
This is where serious mistakes happen.
Once a settlement agreement is made an order of court, it becomes binding and enforceable. Attempting to vary or rescind such an agreement is legally difficult and requires strong grounds.

If you cannot afford an attorney, be cautious about consulting an attorney together with your spouse. That attorney cannot represent both parties’ interests fully.
Instead, consider using a neutral, accredited mediator who:
• Acts impartially
• Assists both parties in reaching a fair agreement
• Ensures informed decision-making
However, even in mediation, it is advisable to obtain independent legal advice before signing any agreement.

Need Advice?
If you are unsure about your rights in a pending divorce or need guidance before entering into settlement negotiations, feel free to contact our offices.
Early advice can make all the difference.
Visit our web page for the full article.

Tel: 012 111 0235 / 079 497 2581
Email: [email protected] / [email protected] / [email protected]
www.deinc.co.za
Danelle Els Nikite Pretorius Chine De la Rey

02/04/2026

Parental leave

In South Africa, there has been numerous complaints regarding parental leave when it comes to the birth of a child as there was unequal treatment when it came to the leave allowed. The Basic Conditions of Employment Act treated parents differently which is in contrast with the constitutional promise of equality. Previously, the law stated that mothers were entitled to 4 months maternity leave while the fathers were entitled to 10 days. In the event of adoption or surrogacy, one of the parties were entitled to 10 weeks of leave.

In a recent court case, Van Wyk and Others v Minister of Employment and Labour, this was changed. According to this case, the provisions of the Basic Conditions of Employment Act violated the Constitutional right to equality and dignity. This was prevalent in that adoptive parents were treated differently than birth parents and mothers and father did not have the same rights.

In the case, the court held that the differentiation amounted to unfair discrimination between mothers, fathers and other types of parents like adoptive and surrogacy parents. The case now resulted in universal parental leave. This means that the four-month maternal leave and the ten days paternal leave is now grouped together as four months and ten days of parental leave.

This case also resulted in leave sharing being an option. This now means that parties can make their own decisions as to how they wish to share their parental leave. Parental leave also no longer differentiates between parents, and all parents are now entitled to the four months and ten days of parental leave which they may divide between them as they wish.

By Nikite Pretorius - Candidate Attorney at Danelle Els Attorneys Incorporated

Danelle Els Attorneys

03/09/2026

19/08/2026

17/06/2026

05/05/2026

22/04/2026

02/04/2026

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