Does Infidelity Affect Divorce Settlements in South Africa?
When a marriage breaks down because one spouse has been unfaithful, emotions tend to run high, and understandably so. For many, infidelity feels like a betrayal that should have consequences for the other party. But while unfaithfulness can be devastating on a personal level, it doesn’t always have the legal consequences people expect. In South Africa, divorce settlements are guided by practical legal principles rather than emotional factors.
South Africa’s No-Fault Divorce System
South Africa operates under a no-fault divorce system, which means a court does not require either spouse to prove wrongdoing to grant a divorce. The only legal ground required is that the marriage has irretrievably broken down. This could result from infidelity, but it could just as easily result from emotional distance, financial conflict or incompatibility.
This is a key principle under the Divorce Act 70 of 1979, which focuses more on practical outcomes than on the moral reasons for a marriage’s failure. Because of this, infidelity is not legally “punished” during the divorce process.
Does Infidelity Affect Asset Division?
In most cases, no. The division of assets in a divorce is guided by the couple’s chosen matrimonial property regime, not by their behaviour during the marriage.
- If a couple is married in community of property, all assets and liabilities are shared equally, regardless of who caused the marriage to break down.
- If they are married out of community of property with accrual, each party keeps their own assets, but the growth in each estate during the marriage is compared and shared.
- In marriages out of community of property without accrual, each party walks away with what they owned going into the marriage and acquired individually during the marriage.
Spousal Maintenance and Infidelity
Spousal maintenance is awarded based on financial need and ability to provide. Section 7 of the Divorce Act allows a court to make a maintenance order if one spouse is unable to support themselves after the divorce, and the other has the means to do so.
While the courts can take a spouse’s conduct into account when awarding maintenance, this is unusual and would typically only happen in extreme circumstances – for example, if infidelity caused significant financial harm to the other spouse. In general, however, unfaithfulness on its own is not a deciding factor.
Parenting Plans and the Best Interests of the Child
Another common misconception is that a spouse who caused the marriage to break down, through their infidelity, will lose some of their parenting rights. But the Children’s Act 38 of 2005 is clear: all decisions about children must prioritise the child’s best interests.
Unless the infidelity leads to a child being exposed to harmful situations (such as unsafe environments, emotional neglect or instability), it will not affect decisions about care and contact. Courts and mediators are more concerned with the child’s safety, emotional well-being and stability than the romantic relationships of the parents.
So, even if one parent feels betrayed, they cannot use infidelity as a reason to deny the other parent access, unless there is clear evidence that the child’s welfare is at risk.
What You Can Do
Although infidelity does not give you an automatic advantage in divorce proceedings, you are still entitled to a fair settlement and to have your emotional and financial well-being protected. If the affair involved financial misconduct, such as misuse of joint assets, it’s important to raise this with your attorney. In highly contentious cases, mediation may also offer a constructive way to move forward.
At Cawood Attorneys, we understand that divorce is more than just a legal procedure; it’s about real people and real pain. If you’re navigating a divorce after infidelity, we’re here to provide honest, practical advice and guidance. Contact us today to discuss your options and make informed decisions about your future.