Divorce is never easy, and when spouses can’t agree on important matters like custody, maintenance, or property, it becomes a contested divorce.
In South Africa, this process can be lengthy and emotional, but understanding what to expect helps you prepare and protect your rights.
This article explains what a contested divorce is, how it works, how long it can take, and how an experienced divorce attorney can help you navigate it.
What Is a Contested Divorce?
A contested divorce happens when one or both spouses disagree on the terms of ending their marriage.
Typical disputes include:
- Who gets primary custody of the children;
- How much maintenance should be paid;
- How assets or debts should be divided; or
- Whether one spouse is entitled to a share of a business or pension.
When agreement isn’t possible, the court must decide.
By contrast, an uncontested divorce is when both parties agree on all issues and only need the court to formalise the settlement (Click here to learn more).
The Legal Basis
South African divorces fall under the Divorce Act 70 of 1979, which allows a court to grant a divorce if the marriage has broken down irretrievably.
When the case is contested, a judge makes decisions on disputes after hearing evidence and arguments from both sides.
How the Contested Divorce Process Works
Although every divorce is different, the general process follows these stages:
1. Summons and Response
The spouse starting the divorce (the plaintiff) files a summons at the relevant court.
It sets out what they’re asking for, custody, division of assets, maintenance, etc.
The other spouse (the defendant) then has 10 business days to file a Notice of Intention to Defend if they disagree.
2. Pleadings and Counterclaims
Both sides exchange formal documents (called pleadings). These outline what each spouse wants and why. The defendant can also file a counterclaim to request their own relief.
3. Discovery and Pre-Trial Steps
Each party must disclose financial and other relevant information, such as payslips, bank statements, and property details.
This stage — known as discovery — ensures transparency before trial.
Often, pre-trial meetings or mediation sessions are held to narrow down issues.
4. Trial and Judgment
If settlement fails, the case proceeds to trial. Both spouses testify, witnesses are called, and experts (such as psychologists or accountants) may present reports.
Once all evidence is heard, the judge issues a Decree of Divorce and final orders on all disputed matters.
How Long Does It Take?
A contested divorce can take one to three years to finalise — much longer than the few weeks needed for an uncontested one.
Delays happen because of:
- Court backlogs;
- Disputes over custody, property, or finances;
- Late document submissions; or
- Scheduling conflicts for witnesses or experts.
To get a realistic estimate for your situation, speak to our Divorce Services team.
How Much Does It Cost?
Contested divorces are more expensive due to legal fees, expert costs, and court appearances.
Typical costs include:
- Attorney’s and advocate’s fees;
- Expert reports (for example, property valuations or child assessments);
- Court filing and service fees.
The longer the dispute lasts, the higher the cost. That’s why early negotiation and mediation can make a big difference.
Common Disputes in Contested Divorces
- Child Custody & Access
The court’s top priority is the best interests of the child, as set out in the Children’s Act 38 of 2005. Parenting plans, schooling, and contact schedules are decided based on stability and welfare. - Property Division
How property is divided depends on your marital regime — in or out of community of property, with or without accrual. - Maintenance
Either spouse can claim spousal or child maintenance, based on financial need and earning ability. Interim maintenance (Rule 43 applications) can also be requested while the divorce is pending.
The Role of Mediation
Even during a contested divorce, mediation can help resolve some or all issues before trial.
Mediation is confidential, less costly, and quicker than litigation — and it’s encouraged by South African courts.
Our attorneys at Macdecorney frequently guide clients through structured mediation to avoid unnecessary conflict and expense.
How to Protect Yourself
- Get Experienced Legal Help
Family law is technical and procedural. A lawyer ensures that your rights are protected and that filings meet court requirements. - Organise Your Documents
Keep detailed records of assets, income, and expenses. Complete financial disclosure prevents complications later. - Focus on the Children
Judges appreciate cooperation and prioritisation of the children’s well-being. Acting responsibly strengthens your position. - Look After Yourself
Divorce is emotionally draining. Professional counselling or support groups can make the process less overwhelming.
Conclusion
A contested divorce in South Africa can be challenging, but knowing what to expect helps reduce stress and delays.
With proper guidance, you can protect your rights and reach fair outcomes even in difficult circumstances.
At Macdecorney Attorneys, we combine compassion and expertise to help clients through every step of the divorce process.
If you’re dealing with a contested divorce, speak to our Family Law team today.
