SOUTH AFRICA Law and Practice Contributed by: Beverley Clark, Jana van Breda, Elmarie Erasmus and Lauren Christie, Clarks Attorneys
or ordinarily resident in the country concerned. This, however, does not mean that a South African court will enforce specific terms of such an order without prior steps being taken (albeit that the parties will be recognised to be divorced). If one requires enforcement of a foreign divorce order or other financial order, steps can be taken to obtain enforcement of the order by a South African court. A party may bring an application in a South African court for a “mirror order” of the foreign order to be made. Alternatively, in respect of maintenance orders only, a party may utilise the processes provided by the Reciprocal Enforcement of Maintenance Orders Act 80 of 1963 (REMO). In order to utilise this process, the foreign country where the maintenance order was granted must have entered into a reciprocal agree ‑ ment with South Africa. REMO is only available in respect of maintenance orders, whereas an applica ‑ tion for a mirror order to be made can be in respect of any type of foreign court order. 2.8 Media Access and Transparency in Financial Proceedings Media Reporting on Financial Cases In South Africa, representatives of the media have the right to attend court proceedings for the purposes of reporting on such proceedings, unless specifically provided otherwise by law. However, there are excep ‑ tions to this. Divorce cases may not be reported on in a manner that in any way identifies the parties, but the media may report on the facts of a case. Anonymising Proceedings Judgments in all divorce matters are now anonymised, using only the parties’ initials. 2.9 ADR in Financial Matters ADR mechanisms are encouraged in South Africa, and the South Africa Law Reform Commission (SALRC) has published a discussion paper relating to the codi ‑ fication of different manners of ADR, such as media ‑ tion, attorney-assisted mediation, parental co-ordina ‑ tion/facilitation, collaborative dispute resolution and arbitration. However, the Arbitration Act 42 of 1965 does not permit arbitration in matrimonial matters or any matters that are incidental thereto (Section 2 (a)).
Notwithstanding this, arbitration has long been advo ‑ cated for in matrimonial matters, and the SALRC has recommended draft legislation to the Department of Justice in respect of the arbitration of disputes relat ‑ ing to patrimonial claims and issues relating to minor children, subject to the judicial oversight of the High Courts. Throughout South Africa, mediation is strongly encouraged. In April 2025, the Gauteng Division of the High Court issued a Mediation Protocol, which introduced mandatory mediation for all civil trial mat ‑ ters. The Gauteng Division took this progressive policy decision and immediately enforced it by removing trial matters that had already been allocated for 1 January 2027 onwards. Furthermore, from the date of imple ‑ mentation of the Protocol, no new civil trial dates will be allocated without a mediation report confirming that mediation was attempted. If a party is recalci ‑ trant, one is able to approach the court for an order to compel them. Any agreements that are reached by way of ADR should still be incorporated into the parties’ decree of divorce. Any further agreements reached outside of a divorce action relating to maintenance should also be made orders of the appropriate court by way of an unop ‑ posed application to the relevant court (either the High Court or the maintenance court), to ensure that the obligations imposed on both parties are enforceable.
3. Child Law 3.1 Choice of Jurisdiction in Children Proceedings
Children’s Courts have jurisdiction to adjudicate a matter when the court is in the area in which the child involved is ordinarily resident or, if more than one child is involved, the area in which any of those children are ordinarily resident (Section 44 of the Children’s Act 38 of 2005). If the Children’s Court has geographical jurisdiction, it is able to adjudicate a wide scope of matters relating to children, which are set out in Sec ‑ tion 45 of the Children’s Act and include:
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