Can You Still Get Divorced If Your Spouse Refuses?

 

Divorce is never easy, and it can be even more complicated when one spouse refuses to cooperate. Many people believe that a divorce cannot proceed unless both parties agree, but this is not true in South Africa. If you are in a situation where your spouse is refusing to give you a divorce, you may be wondering if there’s a way forward and how you might go about ensuring you get your divorce.

In South Africa, one spouse can file for divorce if they prove the marriage has irretrievably broken down. A spouse cannot refuse divorce if the court is convinced there’s no chance of reconciliation. Even if one party objects, the court can still grant the divorce based on the evidence provided.

If your spouse is refusing to divorce you, you might feel stuck—but the law is clear: one person cannot prevent a divorce if the marriage has broken down. This article explores whether a spouse can refuse divorce, the legal grounds for ending a marriage, the court’s role, and what happens if one party tries to delay or avoid the process.

 

Can One Spouse Refuse Divorce?

Your spouse says they will never grant you a divorce—can they really do this? The short answer is no. In South Africa, one spouse cannot legally stop the other from getting a divorce. The court has the final say, not the refusing spouse.

If one party files for divorce and can prove that the marriage is beyond repair, the court will grant the divorce. Whether the other spouse agrees or not is irrelevant. The purpose of the law is to prevent one person from being forced to remain in a marriage against their will.

Even if a spouse objects, delays, or refuses to participate, the court will assess the evidence and issue a divorce decree if the marriage has broken down. The court does not require mutual consent, only proof that the marriage cannot be restored.

 

Grounds For Divorce In South Africa

The Divorce Act 70 of 1979 sets out specific grounds for divorce. The most common and widely accepted ground is the irretrievable breakdown of the marriage.

 

Irretrievable Breakdown of the Marriage

A court will grant a divorce if it is convinced that the marriage has broken down to the extent that there is no reasonable chance of reconciliation. The following circumstances can serve as proof:

• The spouses have lived apart for at least one year before filing for divorce.
• One of the spouses has committed adultery, and the other spouse finds it impossible to continue the marriage.
• One spouse has been declared a habitual criminal and is imprisoned.

 

There are other factors that a court may also consider when deciding whether a marriage has broken down. However, it is ultimately up to the court to determine whether it will grant you a divorce. A qualified divorce attorney can assess your situation and determine whether your case meets the legal criteria.

 

Can A Spouse Refuse Divorce By Avoiding The Legal Process?

Some spouses attempt to block a divorce by ignoring legal proceedings, hoping this will prevent the process from moving forward. However, South African law has clear solutions to prevent these tactics from delaying a divorce indefinitely.

• Avoiding Divorce Summons – If a spouse refuses to accept the divorce summons, the plaintiff’s attorney can apply for substituted service. The court may allow the summons to be delivered via email, WhatsApp, Facebook, or published in a newspaper to ensure the defendant is appropriately notified.
• Ignoring the Summons – The defendant has ten working days from the service date to submit their ‘Notice of Intention to Defend.’ If they fail to do so, the plaintiff can apply for a default judgment, and the court may grant the divorce without the defendant’s involvement.
• Skipping the Court Date – If a spouse is notified correctly but does not appear in court, the divorce can proceed in their absence, and the court may finalise the divorce without their input.
• Filing a Notice of Intention to Defend then Not Responding – If a spouse files an intention to contest the divorce but fails to submit their plea, the plaintiff’s attorney can serve a Notice of Bar, giving them five more days to respond. If they still fail to act, the plaintiff can apply for a default judgment, and the court may grant the divorce under terms that may not favour the absent spouse.

 

Regardless of a spouse’s attempts to avoid the process, the court has mechanisms to ensure a divorce can still be granted.

 

Can A Spouse Delay The Divorce To Stop It From Happening?

While a spouse cannot legally refuse divorce, they may try to delay the process to frustrate the proceedings. Some common delay tactics include:

• Repeatedly failing to appear in court.
• Asking for unnecessary postponements.
• Refusing to provide required documentation.
• Filing meritless objections to prolong the case.
• Ignoring court orders or settlement discussions.

 

However, South African courts do not tolerate deliberate stalling. If a spouse intentionally drags out the proceedings, the court can intervene to keep the process moving. Sometimes, the court may even issue a cost order requiring the delaying spouse to cover legal expenses incurred due to their obstruction. This action ensures that no one can unfairly prolong a divorce to avoid its outcome.

If you seek a divorce and your spouse refuses, know that South African law is on your side. You do not need their permission to end the marriage—only legal grounds that prove the relationship has broken down beyond repair. The court will assess the evidence and grant the divorce if you meet the necessary legal requirements.

At Burnett Attorneys & Notaries, we understand that dealing with a problematic spouse can make divorce even more stressful. Our team of experienced family attorneys can help guide you through this process, ensuring your divorce proceeds smoothly—even if your spouse refuses to cooperate. We will handle the legal complexities, thus allowing you to concentrate on moving forward with your life. Contact us today for our expert legal advice if you need assistance with your divorce.