Divorce has a ripple effect on the couple involved, and their loved ones. It can also be expensive. We explore the cost of divorce, and related considerations.
30 May 2024 · Fiona Zerbst
Divorce is an emotionally taxing affair that affects not only the couple, but also their friends and family. While costs should not be the key determinant when ending a marriage, the reality is, divorce isn’t cheap.
Even when unopposed, divorce can be financially draining, especially if you’re dividing up complex assets. You may have to find cash for everything from legal fees to setting up a new home.
We ask the experts what you can expect to pay, and how to prepare financially, should you face this difficult situation.
Tip: In a financial tight spot? A personal loan may tide you over in an emergency.
When you get married, you join your lives together and influence one another’s financial destiny. How you manage your money, individually and as a couple, will determine the lifestyle you will be able to lead.
Unfortunately, money is one of the leading causes of divorce in South Africa, often because spouses can’t agree, have different priorities, or are not honest with one another. Being open to communication and compromise may ease some of the financial challenges.
Divorce can have significant financial implications, affecting the couple individually and as an economic unit.
Each partner’s net worth is reduced, for example, when assets are divided or liquidated, maintaining separate households is costly, legal fees add up, and one spouse potentially has to pay maintenance.
Any joint debts also have to be split, or one party must assume liability, and each party will have to review their own insurance and other policies.
South African law recognises three marital regimes: marriage in community of property, marriage out of community of property with accrual, and marriage out of community of property without accrual.
Unless specified otherwise, the default regime is marriage in community of property.
“In this marital regime, each spouse owns half of the joint estate. This makes it difficult to split assets if they divorce,” says Anton Schutte, financial planning and development manager at Exponential Financial Services.
It’s wise to draw up an antenuptial contract (ANC) – also referred to as a prenuptial agreement – before you marry, to avoid this potential scenario later on.
“This legal document means both parties will retain their own estates, as opposed to having one joint estate,” explains Leroy Villet, a partner at Lionel Murray Schwormstedt & Louw attorneys.
“If the parties agree to apply the accrual system, the ANC outlines which assets must be excluded from the calculation. If the couple divorces, the value of each party’s estate at the start of the marriage is deducted from the value at the end, and the difference is shared equally,” he notes.
If you have an ANC without accrual, it’s a case of “what’s mine is mine and what’s yours is yours”, says Schutte – but he cautions that recent court decisions have awarded assets that belonged to one spouse before the marriage to the other as part of the divorce settlement, so it’s not foolproof.
The benefit of keeping your estates separate is that each spouse is protected from the other’s creditors, and the administration of your affairs is more straightforward as the other party’s consent is not required.
“People married in community of property can’t open a bank account without their spouse’s consent, or incur any loan or liability without them approving it,” Schutte points out.
A divorce can only be finalised through a court order, says Shirné Grobler, director: family and divorce law at STBB.
Divorces are typically handled through the Regional Court or High Court, depending on factors such as grounds for divorce, whether the divorce is contested, and the complexity of the matter. The High Court typically handles higher-value divorces.
The plaintiff (the person instituting the divorce) can approach the Regional Court to assist them with issuing a divorce summons and having it served on the defendant (the plaintiff’s spouse) without having to appoint an attorney. However, a couple needing advice or assistance may require legal representation.
“The exact proceedings that follow after a divorce summons has been issued and served on the defendant will depend on whether the matter is opposed or not, and whether the parties are able to enter into a settlement agreement,” Grobler says.
Villet explains that if the matter is contested – for example, if the spouses cannot agree on major issues related to the divorce – it will go to trial. Both parties will have to give evidence, and applications for interim maintenance can also be made at this time.
“If the matter is uncontested (i.e., unopposed), you can expect a quick formal hearing of no more than five or ten minutes in the unopposed motion court of either the Regional Court or the High Court,” Villet explains.
Mediation is often used as an alternative dispute resolution mechanism to settle a divorce without the need for litigation. If you choose to enter mediation to settle the terms of your divorce, you and your spouse can jointly appoint a mediator, says Grobler.
“Parties that can successfully mediate a settlement agreement will still need to finalise their divorce through the court by issuing a divorce summons and having the settlement agreement made an order of the court,” she explains.
There are three basic types of divorce: contested, uncontested, and mediated.
A divorce is contested when spouses can’t agree on matters such as the division of assets, access to children, maintenance payments, who is responsible for debts, and so on. It then becomes a matter of litigation, with a court intervening to settle contested issues based on evidence.
An uncontested divorce means both spouses broadly agree on major issues or can resolve matters without the court’s help.
In a mediated divorce, the parties engage a neutral third party to help them negotiate the terms of their divorce, find solutions, and reach a settlement agreement; without the need to bring their case to court.
A more in-depth breakdown of the process and estimated costs related to each type of divorce is outlined below.
Legal fees can vary from R1,000 to R8,000 (plus VAT) an hour, depending on the law firm and the seniority of the legal practitioner, Villet says.
Costs increase if the trial is conducted in the High Court as the attorney will have to brief an advocate to appear in court.
“As a guideline, the cost of having one attorney and one advocate represent you in court can be between R25,000 and R125,000 a day, depending on seniority,” Villet notes.
The final cost depends on the extent and duration of the legal and court proceedings, with factors including:
“Most divorces start out contested and then become uncontested when a settlement is reached. The point at which settlement is reached will determine the costs – the sooner you can settle, the better,” Villet advises.
Grobler says a contested matter can take several years to finalise, depending on the facts of the specific matter, and the court in which the divorce proceedings have been instituted.
Attorneys charge an hourly rate, which depends on their location, experience, and several other factors. This means a long-running divorce will be more costly.
An uncontested divorce will cost roughly in the region of R10,000 to R20,000, says Grobler.
She notes that STBB offers an online divorce platform that allows parties agreeing on their divorce terms to proceed with an uncontested divorce for an all-inclusive fee of R9,000. However, both parties must live in the Western Cape to use this platform.
Villet says “ballpark figures” for an uncontested divorce are between R8,000 and R30,000, depending on the complexity and duration of the matter. It’s also possible to divorce for free, without legal representation, with assistance from the registrar at your local Regional Court.
Grobler adds that an uncontested divorce is usually finalised within six to 12 weeks, depending on the court roll and the level of cooperation from both parties.
Mediators typically bill by the hour, at rates similar to those of attorneys – that is, around R1,500 to R3,000 an hour. However, says Villet, the cost depends on the mediator appointed.
Grobler notes that it’s advisable to appoint an attorney or advocate as a mediator when there are financial disputes, and a psychologist or social worker where minor children are involved.
“There’s no set fee for mediation, and the number of sessions required will also influence the total cost,” she says.
While an unopposed divorce can be completed within weeks, opposed divorces can take years to resolve.
“A High Court divorce is now around four years, for example, which excludes any appeals,” says Villet. He notes that an appeal can also take several years to be concluded.
Knowing what to expect can help you to budget and keep costs as low as possible. Here’s what to consider.
There are no court fees, or fees for filing a divorce, but the plaintiff must pay the cost for the sheriff of the court to serve the summons.
Grobler explains that the sheriff’s cost depends on whether urgent service is necessary, the number of times they have to attempt service before they’re successful, and the distance travelled.
The sheriff must serve the divorce summons on the defendant personally, and their fees can range from R150 to more than R1,500.
Legal fees tend to be the most significant expense attached to a divorce. The hourly rate attorneys charge is not governed by a fixed tariff or guideline.
As a rough guide, an hourly rate can range from R1,500 to R4,000 (plus VAT).
“A mediator will facilitate and guide a conversation between spouses to reach an agreement,” explains Grobler. While mediation is generally a more cost-effective way to resolve a divorce, he notes that there is no set fee or standard tariff for mediators.
A mediator could be a social worker, psychologist, attorney, or advocate – and all work on widely differing hourly rates.
A “DIY divorce” is possible via the registrar of the Regional Court, who can assist you with starting your divorce proceedings – particularly if your divorce is relatively straightforward and uncontested.
The only cost incurred is the fee for the sheriff’s office to serve the summons. This is a good option if you can’t afford legal fees, or if you and your spouse have resolved how your estates are to be split and your children cared for.
This option is less suitable for people with substantial or complex estates, who don’t have time to wait to be assisted by court officials, or whose divorce is acrimonious. It is not recommended in the case of an abusive marriage, or where one party has no insight into the financial affairs of the joint household.
Grobler and Schutte provide the following advice on how to prepare financially before divorcing.
Consider a mediator to keep your divorce costs low, and consult a financial planner for guidance and advice, Villet recommends.
Knowing your financial position will help you budget, and knowing your credit score will help you to apply for credit if you need it. As you proceed with your divorce, take the three steps below.
Separating your finances is an important step in the divorce process. It makes it easier to divide assets and liabilities and gives you financial independence.
“The division of the joint estate, calculation of the accrual, and any other claims in respect of joint property, or claims arising from the marriage, must be dealt with as part of the divorce,” says Grobler.
Depending on the nature of your divorce, you may need to save a substantial sum of money to see it through. A money coach or financial adviser may be able to help you budget or suggest ways to release funds.
“Before the cost of additional professionals is incurred, it’s advisable to obtain legal advice to establish the potential claims and disputes in the divorce, and what the expected costs would amount to,” Grobler counsels.
“Once you have more information, you can make an informed decision about whether further action is necessary.”
Seek legal advice before starting any divorce negotiations, advises Grobler. “This will ensure you’re aware of your rights and obligations in the matter, allowing you to make an informed decision about any possible settlement.”
Also, legal advice may help you to save money in the long run.
Villet has the following recommendations if you’re contemplating divorce.
Tip: A good credit score is essential when applying for credit, so check yours today.
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