Divorce by consent is registered at the district office and is quick, provided both sides agree on everything. A contested divorce requires a statutory ground, proved to the court, and takes years and considerably more money.
The most common misunderstanding is that living apart for long enough amounts to divorce. It does not. Until the divorce is registered or a judgment is given, the marriage continues: property acquired in the meantime may still be marital property, and debts incurred by one spouse may still bind the other.
That is why settling the property alongside the divorce matters more than registering the divorce quickly and dealing with property afterwards.
Marital property and personal property
What decides it is when and how the asset was acquired, not whose name is on the document.
- Property owned before the marriage is that spouse's personal property.
- Property acquired during the marriage by the parties' efforts is generally marital property, even if registered in one name only.
- Property inherited or received as a gift during the marriage is personal property, unless the giver stated otherwise.
- Personal effects and the tools of each spouse's trade are personal property.
- Income produced by personal property during the marriage is marital property.
Debts divide the same way. Debts incurred for the family are joint; a spouse's personal debts are their own. This is disputed more often than the assets themselves.
Grounds for a contested divorce
The list is closed. A court cannot add to it, so a marriage that has simply broken down does not by itself give a ground.
- Maintaining or honouring another person as a spouse, carrying on an affair, or habitual sexual relations with another person.
- Serious misconduct, criminal or not, causing the other spouse grave humiliation, contempt or undue distress.
- Physical or mental harm or torture, or grave insult to the other spouse or to that spouse's parents.
- Wilful desertion for more than one year.
- A final sentence of imprisonment of more than one year for an offence the other spouse neither caused, consented to nor connived at, where continuing to live together would cause undue distress.
- Voluntary separation for more than three years because living together in peace is not possible, or separation under a court order for more than three years.
- A court declaration of disappearance, or leaving the domicile for more than three years with no word of whether the spouse is alive.
- Failure to provide proper support and maintenance, or serious conduct inimical to the marriage, causing undue distress.
- Insanity continuing for more than three years, unlikely to be cured, making life together intolerable.
- Breach of a written bond of good behaviour.
- A serious communicable disease, dangerous to the other spouse and chronic with no prospect of cure.
- A physical condition making sexual relations permanently impossible.
Some grounds carry a deadline running from the day the ground became known, and forgiving the conduct or continuing to live together afterwards can extinguish the ground. Take advice before deciding.
What to bring
- The marriage certificate and both house registrations.
- Title documents for every asset with the date acquired: land title deeds, vehicle registration, bank accounts and shareholdings.
- Evidence of debts: loan agreements, credit cards and instalment finance.
- Payslips or evidence of income for both spouses, which is used to set maintenance.
- The children's birth certificates, if custody is also in issue.
This page is general information, not advice on your situation. How property divides depends on the facts of each asset. Bring the title documents for review before agreeing anything.