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​ONLINE DIVORCE

CLICK HERE

The Grounds for Divorce in South Africa


 A marriage may be dissolved by a court on the following grounds:
​
  • the irretrievable breakdown of the marriage; or
  • the mental illness, or the continuous unconsciousness, of a party to the marriage.

Irretrievable breakdown

A court may grant a decree of divorce on the grounds of the irretrievable breakdown of the marriage if the court is satisfied 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 marital relationship between them.

Divorce Act 70 of 1979 lays down the circumstances that a court may accept as evidence of the irretrievable breakdown of a marriage:

  • The parties have not lived together as husband and wife for a continued period of at least one year immediately prior to the date issuing summons for divorce.
  • The defendant has committed adultery and the plaintiff finds it irreconcilable with a continued marriage relationship.
  • The defendant was declared a habitual criminal and is undergoing imprisonment.

The court still has discretion not to grant a divorce order, and may postpone the proceedings or dismiss the claim if it appears to the court that there is a reasonable possibility that the parties may reconcile through counselling. If reconciliation is unsuccessful after a few months, the parties may proceed with the same summons. The summons will usually contain the averment that further counselling and/or treatment will not lead to any reconciliation. A court must, therefore, be satisfied that the marriage is really broken down and that there is no possibility of the continuation of a normal marriage.

Where the parties reconcile and live together again after the summons was issued and served, it does not necessarily end the divorce proceedings. If, however, the reconciliation is unsuccessful after a few months, the parties may proceed with the same summons. It is extremely important to make sure that the summons is withdrawn formally if you do decide to reconcile. Withdrawal of the summons is formally affected when the plaintiff serves a document referred to as a notice of withdrawal of the summons on the defendant or his/her attorney. If this is not done, a divorce order may be obtained by default without the defendant being aware of it. If a divorce is obtained in this manner, the aggrieved party may approach the court to set aside the order.

Since the present law on divorce is no longer based on the principle of fault, defences like insanity or the plaintiff’s own adultery are no longer valid defences. Therefore, if a divorce is instituted on account of an irretrievable breakdown, there is in fact no defence to prevent the divorce from proceeding. But if the court finds that there is a reasonable possibility of reconciliation, it may postpone the proceedings in order that the parties attempt reconciliation; this, however, is not a defence, but merely amounts to a postponement.

Mental illness or continuous unconsciousness

Mental illness

A court may grant a decree of divorce on the grounds of the mental illness of the defendant if the court is satisfied that the defendant:

  • has been admitted as a patient to an institution in terms of the reception order;
  • is being detained as a state patient at an institution or other place specified by the Minister of Correctional Services; or
  • is being detained as a mentally ill convicted prisoner at an institution.

A divorce order may also be granted if the defendant has, for a continuous period of at least two years immediately prior to the institution of the divorce action, not been discharged unconditionally as such a patient, state patient or mentally ill prisoner; and if the court has heard evidence from at least two psychiatrists, one of whom must have been appointed by the court, that the defendant is mentally ill and that there is no reasonable prospect that he/she will be cured of his/her mental illness.

Continuous unconsciousness

A court may grant a decree of divorce on the grounds that the defendant is, by reason of a physical disorder, in a state of continuous unconsciousness, if it is satisfied that:

  • the defendant’s unconsciousness has lasted for a continuous period of at least six months immediately prior to the institution of the divorce action; and
  • after having heard evidence from at least two medical practitioners, one of whom must be a neurologist or a neurosurgeon appointed by the court, there is no reasonable prospect that the defendant will regain consciousness.

The divorce process in South Africa is relatively straightforward, yet the financial and emotional consequences can be profound, especially since most divorces are normally lodged in the High Court, where the costs to litigate are extremely high. The other harsh reality is that the High Courts in South Africa have overly burdened court rolls, and parties normally have to wait a long time for their divorce matter to go to trial when their divorce is contested. The backlog in cases was somewhat lessened when the Regional Courts Amendment Act came into effect in 2010 to amend the Magistrates’ Courts Act, 1944, so as to allow regional divisions of the magistrates’ courts to also deal with divorce cases.

In South Africa, the marital regime of the parties determines how the assets will be divided upon dissolution of the marriage, the assets being those at the time of the divorce. In South Africa, we have a ‘no fault’ system of divorce, meaning that a divorce will be granted if one of the parties believes that there has been an ‘irretrievable breakdown of the marriage relationship’ and that there are no reasonable prospects of restoring it. Therefore, a marriage can be dissolved even if one of the parties does not wish to get divorced.

Civil marriages, civil unions and those religious marriages conducted by registered marriage officers can only be dissolved by order of the court. The spouse wishing to end the marriage must issue a summons against the other spouse, stating that the relationship has broken down, that there is no reasonable prospect of restoring the relationship and which matrimonial property regime governs the marriage. The summons must make provision for the division of the estate, either stating that the parties have entered into a prior agreement or asking the court to divide the joint estate or enforce the provisions of the Antenuptial Contract. Parties must also set out what the arrangements are with regards to any children born or adopted during the marriage.

Read more on Divorce

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BERTUS PRELLER
​MAURICE PHILLIPS WISENBERG

20th Floor, 2 Long  Street, Cape Town, 8001, South Africa
Telephone: +27 21 419 7115


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Email: familylaw@mpw.co.za
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  • Home
  • Divorce
    • The Divorce Process in South Africa
    • Rule 41A Mediation
    • The Marital Property Regimes >
      • Marriage in Community of Property
      • Marriage out of community without accrual
      • Marriage out of community with the inclusion of the accrual
      • Universal Partnerships
      • Register Antenuptial Contract Online
      • Changing your matrimonial regime.
    • Division of Assets at Divorce >
      • Forfeiture of Assets in a Divorce
    • Evicting your spouse divorce
    • Retirement Funds and Divorce
    • Living Annuities
    • Hiding Assets in a Divorce
    • Trusts and Divorce
    • Divorce a Missing Spouse
    • Adultery and Suing a Third Party
    • Domicile in Divorce Cases
    • International Divorces in South Africa
    • International Divorce Law >
      • UK Divorce Laws
    • Choosing a Divorce Attorney
    • On-line Divorce
    • Lawyer Fees and Costs
    • Important Aspects of a Divorce
    • Dealing with Emotions During Divorce and Separation
    • Divorce Statistics
    • Divorce Therapy and Counselling >
      • Marriage and Relationship Therapists
    • Rebuilding Your Financial Life
    • Divorce Attorney Cape Town
    • Divorce Polls
    • Ingredients of a successful relationship
    • Uncontested Divorce
    • Uncontested Divorce - What Happens on the Court Day?
  • Maintenance
    • Maintenance Child COVID19
    • Spousal maintenance
    • How to calculate Child Maintenance?
    • Maintenance Defaulters
    • What Happens if you don't pay child maintenance
    • Child Maintenance Frequently Asked Questions
    • Rule 43 Interim Maintenance Pending Divorce >
      • Can I appeal a Rule 43 Order
      • Apply for Costs in Rule 43
      • Financial Disclosure Rule 43
      • Rule 43 Maintenance
    • The Maintenance Manual
    • Grand Parents and Maintenance
  • Children
    • Custody and Coronavirus
    • Relocation and Child Abduction >
      • International Child Custody Law South Africa
      • Tips on international child custody
    • Unmarried Parents and the Law
    • Parenting Plans >
      • Conflict and dispute-resolution mechanisms
    • The non-custodian parent and contact
    • Appointing a Guardian in a Will
    • Introducing a new partner to your child
    • Refusal of Contact
    • Suspending Parental Rights
    • Parental Alienation
    • Facilitation
    • Living Arrangements
    • Joint decisions about your child
    • Paternity Disputes
    • The Family Advocate
    • Parenting during separartion
    • Children's Act 38 of 2005
  • Abuse
    • Gender Based Violence in South Africa
    • Domestic Abuse Forms
    • Evicting Wife
    • Domestic Violence Corona Virus
    • Divorcing an Abusive Spouse
    • What is Coercive Control?
    • What is Emotional Abuse
    • What is Sexual Abuse
    • What is Financial Abuse
    • What is Stalking
    • What is Verbal Abuse
    • What is Spiritual Abuse
    • What is Social Abuse
    • Revenge Porn
    • Steps to obtain a Protection Order
    • Domestic Violence eBook
    • The Protection Order
    • Who Qualifies for a Protection Order
    • Breaching a Protection Order
    • Questions on Domestic Abuse
    • Signs of an Abusive Relationship
    • Domestic Violence Information
    • Harassment
  • Cohabitation
    • Maintenance and Cohabitation
    • Sample Cohabitation Agreement
    • Engagement and the law
    • Formalities for marriage in south africa
  • Same Sex
  • Family Law eBooks
  • Family Law Links
    • The South African Court System
    • Court Rolls
    • Family Law Legislation
    • Family Law Blog
    • Family Law Newsletter March 2017
    • September 2016 Family Law Newsletter
    • Family Law Newsletter 2017 1
    • New Family Law Cases
    • Family Law Matters
    • Register for the Online Family Law Course
    • Online Family Law Education
  • About the Author
  • Contact
  • Charities