Grounds for Divorce in South Africa: When can You get a Divorce?

When a divorce has been finalised, a couple’s marriage is effectively dissolved and they cease to have any legal responsibilities to one another. A divorce will only be granted if the courts are satisfied that the legal grounds for divorce have been met. According to the Divorce Act 70 of 1979, the court may grant a divorce if it finds that there has been an irretrievable breakdown of the marriage or if one of the parties suffers from mental illness or is continuously unconscious. The court will consider the evidence presented by both spouses and will ultimately make a decision as to whether or not these standards have been met.

An Irretrievable Breakdown of the Marriage

When couples file for divorce on the grounds that there has been an irretrievable breakdown of their marriage they will have to prove to the court that the marriage has completely deteriorated and that there is no chance of repairing the relationship. If the court feels that the reasons given are insignificant and that it might be possible to repair the relationship it has the discretion not to approve the divorce. Although it must be said that in practice, if one party wants a divorce, the divorce will be granted as the court cannot force such a person to be married. 

The Divorce Act indicates that evidence of the following can be submitted as proof that the marriage is beyond repair:

• The spouses have been separated, not residing in the same home, for at least one year prior to filing for divorce.
• The defendant has committed adultery and the relationship has eroded as a result of this.
• The defendant is in prison and has been declared a habitual criminal by the court.

It is important to note that this is not the only evidence that is considered valid and the courts will consider all the facts submitted by both parties during divorce proceedings.   

Mental Illness 

The court considers mental illness and continuous unconsciousness as valid grounds for divorce as these conditions can cause a lot of strain on the relationship when there is no prospect of recovery. 

As it relates to mental illness, the court may grant a divorce if the plaintiff can prove that for a period of at least two years prior to the application for divorce:

• The defendant has been institutionalised in terms of a reception order.
• The defendant is being confined as a state patient at an institution or any other place that is defined by the Minister of Correctional Services.
• The defendant has been detained as a mentally ill convicted prisoner.

The court will also require evidence from at least two psychiatrists that the defendant is indeed considered mentally ill and that there is no reasonable possibility that they will recover from this. One of these psychiatrists will be appointed by the court to make a determination of the individual’s mental state.

Continuous Unconsciousness

Some disorders can place individuals in a state of continuous unconsciousness. A state that renders that person unaware of their surroundings and leaves them unable to respond in any meaningful way. 

A court may find that a defendant’s state of continuous unconsciousness is legal grounds for divorce if:

• This state of unconsciousness has endured for a continuous period of at least six months before the initiation of divorce proceedings.
• The court has heard evidence from at least two medical practitioners that there is no reasonable expectation of the defendant regaining consciousness. One of the medical professionals has to be a neurologist or a neurosurgeon appointed by the court.

Divorce can be overwhelming and everyone’s circumstances are different. Contact Cawood Attorneys for sound legal advice and assistance during legal proceedings. Our team of qualified attorneys will help you navigate our country’s complex legal avenues as we work towards a timely resolution.