The Three Main Grounds for a Divorce
Courts do not take a person’s decision to divorce their spouse lightly. This is due to many factors that include, inter alia, the sanctity of marriage, the long term consequences of divorce for both spouses and any children born of the marriage, and the emotionally taxing experience that is naturally associated with divorce proceedings.
The only grounds on which a Court may grant a decree of divorce are set out in section 3 of the Divorce Act, 70 of 1979 (“the Divorce Act”).
Firstly, a decree of divorce may be granted if there is an irretrievable breakdown of the marriage. In terms of section 4 of the Divorce Act, this means that “the marriage relationship between the parties to the marriage has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between them“.
In order to satisfy the Court that there has been an irretrievable breakdown of the marriage, the party instituting the divorce proceedings, known as “the Plaintiff”, may submit evidence that includes, inter alia, that the spouses have not lived together for a continuous period of at least one year prior to the institution of divorce proceedings, that the Plaintiff’s spouse (cited as the “the Defendant”) has committed adultery and that the Plaintiff cannot continue with a normal marriage relationship as result thereof, or the Defendant has been declared a habitual criminal and is undergoing imprisonment.
If the spouses have taken the initiative to attend marriage counselling in an attempt to salvage their marriage relationship, but have been unsuccessful in any form of reconciliation, this will provide strong evidence of an irretrievable break down of the marriage.
The second ground for divorce is the mental illness of a party to the marriage. For example, section 5(1) of the Divorce Act states that the Court may grant a decree of divorce on the ground of the mental illness of the Defendant if the Court is satisfied that the Defendant has been admitted to an institution as a patient, or as a mental health care user receiving involuntary care and treatment, for a continuous period of not less than two years immediately prior to the commencement of the divorce proceedings.
Thirdly, a decree of divorce may be granted if the Defendant has been continuously unconscious for a continuous period of at least six months immediately prior to the institution of divorce proceedings, and, on the basis of expert evidence, there is no reasonable prospect that the Defendant will regain consciousness.
It is submitted that a decree a divorce may have extensive consequences for one’s family, financial circumstances and emotional well-being. By being cognizant of these factors and by setting out clear requirements to obtain a decree of divorce, the Court seeks to strike a balance between safeguarding the institution of marriage and civil unions, and protecting the rights and best interests of the individual seeking a divorce.
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This article is for general information should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact an attorney for specific and detailed advice. Errors and omissions excepted (E&OE)