Divorce is one of the most financially disruptive events a person can face. When debt review is also involved — either because you are already under debt review or because divorce leaves you over-indebted — the situation becomes significantly more complicated. Your type of marriage, the nature of your debts, and the terms of your divorce settlement all determine what happens next. This guide explains everything you need to know about debt review and divorce in South Africa.
What Happens to Debt Review When You Get Divorced?
The short answer is that divorce forces a reassessment of your entire debt review arrangement. Debt review is built on a specific set of financial facts — your combined household income, your expenses, and your total debts. When you divorce, every one of those facts changes. Your household income splits into two. Your expenses change because you are now running separate households. And the question of who is responsible for which debts must be resolved.
If you were under debt review as a couple, the existing debt restructuring plan — the court order or consent order that governs your reduced monthly payments — may no longer be workable. Your debt counsellor will need to revise the plan to reflect the new reality. In some cases, the plan may need to be set aside entirely and replaced with new individual plans for each former spouse.
Key point: Divorce does not automatically end debt review. Your debts do not disappear because you are no longer married. What changes is who is responsible for each debt, how much each person can afford to pay, and whether the existing restructuring plan needs to be revised or replaced.
Marriage Types and Their Impact on Debt During Divorce
Your type of marriage determines how your debts are treated during divorce proceedings. South African law recognises three marriage regimes, and each one has different rules for debt liability.
Community of Property (COP)
If you did not sign an antenuptial contract (ANC) before your wedding, you are married in community of property. This is the default marriage regime in South Africa under the Matrimonial Property Act. Under COP, all assets and all debts belong to a single joint estate. There is no legal distinction between one spouse's debt and the other's — everything is shared.
When a COP couple divorces, the joint estate must be divided. This includes dividing all debts. Both spouses are equally liable for every debt in the joint estate, regardless of who originally signed the credit agreement. The divorce settlement must specify how each debt will be allocated. If one spouse was under debt review, or if both were under debt review together, the debt restructuring plan must be revised to reflect the division of the estate.
In practice, this means the debt counsellor and the divorce attorney must work together. The divorce order will assign specific debts to each spouse. The debt counsellor then creates a new restructuring plan for each individual based on their post-divorce income, expenses, and allocated debts.
ANC Without Accrual
If you signed an antenuptial contract without the accrual system, each spouse maintains a completely separate estate throughout the marriage. Your debts are yours, and your spouse's debts are theirs. Divorce does not change this fundamental principle.
Each spouse is only liable for their own debts. If one spouse was under debt review independently, the divorce has no direct impact on that debt review — the plan continues as before, based on the individual's income and debts. However, if the divorce affects the individual's income (for example, if one spouse was financially dependent on the other), the debt restructuring plan may still need to be revised to reflect the change in circumstances.
The major exception is joint debts. Even in an ANC marriage without accrual, if both spouses co-signed a loan — such as a joint home loan or co-signed vehicle finance — both remain liable for that specific debt regardless of the divorce.
ANC With Accrual
An ANC with accrual is the most common type of antenuptial contract in South Africa. During the marriage, each spouse maintains a separate estate — debts are separate, just like ANC without accrual. However, when the marriage ends through divorce, the accrual (growth) of each estate during the marriage is calculated and the spouse whose estate grew less has a claim against the other for half the difference.
For debt review purposes, the key point is that debts remain separate. Each spouse is responsible for their own debts during and after the marriage. The accrual calculation at divorce deals with the net growth of estates (assets minus liabilities), not with the allocation of individual debts. If one spouse has significant debts that reduce their estate's growth, this affects the accrual calculation but does not transfer those debts to the other spouse.
Debt Liability Comparison: COP vs ANC at Divorce
The table below summarises how each marriage type affects debt liability when you divorce:
| Factor | COP (No ANC) | ANC Without Accrual | ANC With Accrual |
|---|---|---|---|
| Individual debts at divorce | Shared — both spouses liable | Remain with original spouse | Remain with original spouse |
| Joint debts at divorce | Divided by divorce order | Both remain liable until settled | Both remain liable until settled |
| Pre-marriage debts | Part of joint estate — shared | Remain with original spouse | Remain with original spouse |
| Debt review plan after divorce | Must be restructured for each spouse | Continues for indebted spouse | Continues for indebted spouse |
| Creditor can pursue ex-spouse? | Yes — for any joint estate debt | Only for co-signed debts | Only for co-signed debts |
| Accrual sharing at divorce | Not applicable — estate is joint | Not applicable — no accrual | Net estate growth is shared |
| Court can redistribute debts? | Yes — Section 7 of Divorce Act | Limited — Section 7(3) applies | Yes — via accrual claim |
What If You Were Already Under Debt Review When Divorce Happens?
If you or both spouses are already under debt review when divorce proceedings begin, several things must happen. First and most importantly, you must inform your debt counsellor immediately. Your debt counsellor is legally obligated to work with accurate financial information, and a divorce fundamentally changes your financial position.
The existing debt restructuring plan — whether it is a consent order already granted by the court or a proposal still being negotiated — may need to be revised or replaced. If you were married in community of property and both spouses were under debt review together, the single joint plan must be split into two individual plans. Each plan will reflect that spouse's post-divorce income, expenses, and their allocated share of the debts as determined by the divorce settlement.
If you were married with an ANC and only one spouse was under debt review, the divorce may have less impact on the debt review itself. However, if the divorcing spouse's income or expenses change significantly (for example, if they now receive or pay maintenance), the debt counsellor must revise the plan accordingly.
Can You Apply for Debt Review After Divorce?
Yes — and for many people, divorce is exactly the trigger that makes debt review necessary. When a household splits into two, each person must now cover their own rent, utilities, transport, and groceries on a single income. Debts that were manageable on a combined household income may become unaffordable when you are on your own.
If you find yourself over-indebted after divorce — meaning your monthly debt repayments exceed what you can afford after covering essential living expenses — you qualify for debt review under the National Credit Act. Your previous marriage type does not affect your eligibility. You apply as an individual, and the debt counsellor assesses your personal income, your personal expenses, and the debts that are in your name.
Debts that were assigned to you in the divorce order, debts that were always in your name only, and any joint debts where you remain a co-signatory can all be included in your debt review application. Maintenance obligations (either paying or receiving) are factored into your income and expense assessment.
Joint Credit Agreements During Divorce — Who Is Liable?
Joint credit agreements are one of the most contentious issues in divorce. A joint credit agreement is any loan or credit facility where both spouses are co-signatories or co-applicants. Common examples include a joint home loan (bond), vehicle finance in both names, a joint overdraft, or a credit card where one spouse is a supplementary cardholder.
The critical legal principle is this: a divorce order cannot release either party from a joint debt without the creditor's consent. The divorce court can assign a joint debt to one spouse in the settlement, but this is an arrangement between the two spouses — it does not change the credit agreement with the bank or lender. As far as the creditor is concerned, both parties remain jointly and severally liable until the debt is paid off or one party is formally released through a substitution agreement.
This means that if your divorce order says your ex-spouse must pay the home loan, but they stop making payments, the bank can still come after you for the full amount. Your legal remedy is against your ex-spouse for breach of the divorce order — not against the bank.
Warning: Do not assume that a divorce order protects you from joint debts. If your ex-spouse fails to pay a joint debt that was assigned to them in the divorce settlement, the creditor can still pursue you for the full outstanding amount. Always confirm with the creditor whether you have been formally released from the agreement.
Suretyship and Joint Bonds — Common Issues
Suretyship is another area that creates problems during divorce. If you signed surety for your spouse's business loan, personal loan, or any other credit agreement, you are legally liable if your spouse defaults — regardless of whether you are still married. A divorce does not cancel a suretyship agreement.
Joint home loans (bonds) present a particularly complex challenge. When a couple divorces, there are typically three options for the joint bond: the property is sold and the proceeds used to settle the bond, one spouse takes over the bond (with the bank's approval) and the other is released, or the property is transferred to one spouse while both remain on the bond. The third option is risky because the non-owning spouse remains liable for the bond despite no longer having any interest in the property.
If you are under debt review and divorcing, your debt counsellor must be aware of any suretyship or joint bond arrangements. These obligations must be accounted for in your revised debt restructuring plan, and your divorce attorney should negotiate the most favourable outcome for joint debts as part of the settlement.
Section 7 of the Divorce Act — Redistribution of Assets and Debts
Section 7 of the Divorce Act (Act 70 of 1979) gives the divorce court the power to make orders regarding the division of assets. For COP marriages, Section 7(3) allows the court to order a redistribution of assets (and by extension, liabilities) if the existing division would be inequitable. The court considers factors such as each party's existing means and earning capacity, their financial needs, and their respective contributions to the marriage.
For ANC marriages with accrual, Section 7(5) governs the calculation of the accrual claim. The spouse whose estate grew less during the marriage has a claim against the other for half the difference in growth. Debts reduce the net value of an estate and therefore affect this calculation.
For ANC marriages without accrual, the court's power to redistribute is more limited, but it can still make orders regarding maintenance and the division of specific assets if warranted by the circumstances.
If you are under debt review, or considering debt review, your divorce attorney should be aware of this. The redistribution of debts under Section 7 directly affects what each spouse owes after divorce and therefore what each spouse's debt review plan will look like.
Practical Steps to Take
If you are going through a divorce and debt review is involved — or may become necessary — follow these steps to protect yourself:
As soon as divorce proceedings begin, notify your debt counsellor. They need to know about the change in your financial circumstances. If you are under a court-ordered debt restructuring plan, it may need to be varied to reflect your post-divorce situation.
A divorce attorney can advise you on how your marriage type affects debt division, negotiate the allocation of joint debts in the settlement, and ensure the divorce order protects your interests. If you are already under debt review, your attorney and debt counsellor should communicate directly.
Make a complete list of every joint credit agreement — home loans, vehicle finance, credit cards, overdrafts, and any debts where you signed as surety. For each one, confirm the outstanding balance, the monthly instalment, and who the primary account holder is. This information is essential for your divorce settlement and your debt review plan.
Create a new budget based on your post-divorce income and expenses. If you will be living alone, your expenses may increase (separate rent, utilities, groceries) even as your income potentially decreases. A realistic budget helps your debt counsellor create an accurate restructuring plan and helps you assess whether debt review is necessary.
Protecting Yourself After Divorce
Once the divorce is finalised, take these steps to protect your financial position going forward:
- Do not sign surety for your ex-spouse. After divorce, you have no obligation to guarantee your ex-spouse's debts. If they ask you to co-sign or stand surety for any new credit, decline. This is one of the most common mistakes people make after divorce.
- Cancel all joint accounts. Close any joint bank accounts, cancel joint credit cards, and ensure no shared overdraft facilities remain open. As long as a joint account is open, both parties can incur debt on it and both are liable.
- Notify all credit providers. Contact every bank, retailer, and lender where you have joint accounts or where your ex-spouse is listed as a secondary cardholder. Request that the account be converted to a single-holder account or closed. Get written confirmation.
- Request a full credit report. After divorce, pull your credit report from all major bureaus (TransUnion, Experian, Compuscan) to confirm which debts are listed under your name. This helps identify any joint debts you may have overlooked and confirms that your ex-spouse's individual debts are not listed on your profile.
- Update your will and beneficiaries. Divorce does not automatically remove your ex-spouse as a beneficiary on insurance policies, retirement funds, or your will. Review and update all beneficiary nominations.
Going through a divorce and struggling with debt? You are not alone. Many South Africans find themselves over-indebted after divorce because managing debt on a single income is significantly harder than on a combined household income. A registered debt counsellor can assess your post-divorce financial position and create a repayment plan that fits your new reality.
Related Articles
For more information on how marriage and debt interact, and to understand the debt review process in detail, read these related guides:
- Debt Review for Married Couples in South Africa — how your marriage type determines the rules for debt review
- What Is Debt Review and How Does It Work? — a complete overview of the debt review process
- Documents Needed for Debt Review Application — everything you need to gather before applying
Frequently Asked Questions
Do I have to tell my debt counsellor that I am getting divorced?
Yes. You must inform your debt counsellor as soon as divorce proceedings begin. Divorce changes your household income, your expenses, and potentially your liability for certain debts. Your debt counsellor needs this information to revise your debt restructuring plan and ensure your monthly instalment still reflects your actual financial position.
Can I apply for debt review after my divorce is finalised?
Yes. Many people apply for debt review after divorce because they are now managing debt on a single income. If you are over-indebted as a single-income household, you qualify for debt review regardless of your marital history. Your debt counsellor will assess your individual income, expenses, and debts.
What happens to joint debts like a home loan when we divorce?
Both parties remain liable for joint debts until the debt is fully settled or one party formally takes over the agreement with the creditor's consent. A divorce order can assign a joint debt to one spouse, but this does not release the other spouse from liability to the creditor unless the creditor agrees to a substitution. If payments stop, the creditor can pursue either party.
If my ex-spouse was under debt review, does that affect me after divorce?
It depends on your marriage type and whether you share joint debts. If you were married in community of property, both spouses were under debt review together and the plan must be restructured at divorce. If you were married with an ANC and have no joint debts, your ex-spouse's debt review does not affect you at all after divorce.
Can the divorce court force me to pay my ex-spouse's debts?
Under Section 7 of the Divorce Act, the court has the power to redistribute assets and liabilities between spouses. The court considers factors such as each party's financial position, earning capacity, and contributions to the marriage. In a COP marriage, debts from the joint estate are divided as part of the settlement. In an ANC marriage, the court may still order one spouse to take over certain debts if it is just and equitable to do so.
