What Are The Two Legal Grounds For Divorce In South Africa?

Whether you like it or not, you might find that your marriage has reached what you believe to be the point of no return. One thing that many people are unaware of is that in South Africa, the judicial system will only grant your divorce if you can prove there are grounds for this divorce. So what are the grounds for divorce in South Africa?

There are two primary grounds for divorce in South Africa. The first is the irretrievable breakdown of the marriage. The second is two-fold and includes incurable mental illness and a continuous state of unconsciousness. The latter two will require confirmation by a relevant medical practitioner.

Going through the process of dissolving your marriage is a tricky and emotionally challenging process. The dissolution of a marriage is not as easy as it seems, so, understandably, there will be laws governing the process. Knowing if you qualify for divorce first requires understanding the grounds for divorce in South Africa.


What Are The Two Legal Grounds For Divorce In South Africa?

According to the Divorce Act 70 of 1979, there are two primary grounds for the dissolution of a marriage in South Africa.

  • The irretrievable breakdown of the marriage
  • Incurable mental illness or a state of continuous unconsciousness


Irretrievable Breakdown Of Marriage

According to Section 4 of the Divorce Act, several grounds exist for the irretrievable breakdown of a marriage in South Africa. These grounds for divorce in South Africa include but are not limited to:

  • Living apart for more than a year: The spouses would have needed to have not lived together as husband and wife for a continuous period of at least a year before the date on which they initiated their divorce proceedings.
  • Adultery: One of the spouses has an intimate relationship with someone who is not their spouse. In most cases, this type of action allows for the breakdown of trust within the union. This breakdown of trust can sometimes result in a typical marriage relationship no longer being possible.
  • Malicious Desertion: In this instance, one of the spouses spitefully or hatefully leaves his/her family, failing to contribute to the maintenance of his/her family members or any other related responsibility.
  • Drug or Alcoholism Addiction: When one of the spouses is a drug addict or alcoholic, irrelevant to any rehabilitation programs they might be attending or have attended in the past.
  • Domestic Violence, Cruelty, Or Assult: The form of abuse can fall under emotional, physical, financial, or psychological abuse of a spouse.
  • Habitual Criminal & Imprisonment: If one of the spouses has been deemed by a court to be a habitual criminal and is undergoing a prison sentence as a result. Thus, resulting in the breakdown of the marriage.


Incurable Mental Illness

Unfortunately, in some cases, one of the spouses might have an incurable mental illness that has resulted in them being institutionalised. In this instance, the other spouse must prove to the courts that their spouse’s mental illness is untreatable. According to Section 5 of the Divorce Act, there are three ways to prove insanity as a grounds for divorce in South Africa:

  • In terms of the Medical Health Act, 1973, the mentally ill spouse:

– Must have been admitted to an institution as a patient in terms of a reception order.

– They are being detained as a State patient at an institution specified by the Minster of Correctional Services.

– Or they are being detained at an institution as a mentally ill convicted criminal.

  • The mentally ill spouse has not been discharged as a patient, mentally ill prisoner, or State patient for a continuous period of at least two years immediately prior to the divorce action.
  • The court will need to hear evidence from at least two psychiatrists, of which one would need to be appointed by the courts, that the spouse is mentally ill and that there is no reasonable prospect for remedy.


Continuous Unconsciousness

According to Section 4 of the Divorce Act, the grounds for divorce in South Africa regarding continuous unconsciousness include:

  • The spouse would have needed to be unconscious for at least six months immediately prior to the institution of the divorce action.
  • The court will need to hear the evidence of at least two doctors, of which one would need to be a neurosurgeon or neurologist appointed by the court, that there is no reasonable prospect that the spouse will regain consciousness.


What If The Court Is Unsatisfied With The Grounds Of Divorce?

Many people either don’t know or don’t fully understand that even if you think your reason for requesting a divorce is sound, a judge might disagree with you. In the case where a judge decides that they do not support your request, they have the right to postpone the proceedings or even dismiss the claim if they believe that there is a reasonable possibility that the spouses involved might reconcile through counselling.

The judge might require the spouses to attend a few months’ worth of counselling sessions to verify whether or not the marriage has indeed reached a breaking point, and there is no doubt that it cannot be reconciled.

If the appointed counsellor and the spouses find any form of reconciliation unattainable, then the parties may proceed with the same summons. In this instance, the summons will typically contain the averment that any further treatment or counselling will not lead to any form of reconciliation between the two parties involved.

In some cases, the spouses will benefit from the required counselling and decide not to proceed with the divorce procedure. In this instance, their reconciliation will not necessarily end their divorce proceedings. Instead, they would need to file a notice for the withdrawal of the summons. If they do not do this, the divorce might be granted by default, requiring the aggrieved party to approach the court to set the order aside.

In other cases, the spouses may decide not to withdraw the summons, and if they find that within a few months of the reconciliation, they would prefer to go ahead with the divorce, they can proceed with the same summons.

The divorce procedure in South Africa can be complicated, involving numerous aspects surrounding child custody, maintenance, spousal maintenance, division of assets, etc. Deciding whether or not your reasoning for the dissolution of your marriage will stand as grounds for divorce in South Africa can also be challenging.

Our litigation team at Burnett Attorneys & Notaries is available to help make this process a little easier for you. We understand how sensitive the divorce process can be, and we aim to handle them in a civilised, sympathetic, and positive manner. You can arrange an appointment to meet with one of our team members by completing our online request form or phoning us. If coming into our offices might seem problematic, we would be happy to arrange an initial telephonic consultation at a convenient time for you.