Understanding grounds for divorce in South Africa

The conditions that must be met in order for a divorce to be granted in a court of law, referred to as ‘grounds for divorce’, vary from country to country. In South Africa, the law agrees there are grounds for divorce if:

  • There is an irreparable breakdown of the marriage
  • A state of mental illness or continuous unconsciousness persists in either party (this would make attempts at reconciling impossible)

If either of these conditions are met, a divorce can proceed.

What is considered an ‘irreparable breakdown of marriage’ in South African law?

South Africa’s Divorce Act 70 of 1979 states that courts may accept the following as evidence of breakdown of a marriage:

 

  • Divorce applicants have not lived as husband and wife for at least one full continuous year prior to giving summons for divorce
  • The defendant has committed adultery and the plaintiff sees no possibility of reconciling
  • The defendant has been prosecuted for criminal activity and is imprisoned

When might grounds for divorce be denied?

 

Regardless of the above, South African courts can also refuse to accept grounds for divorce and can refuse to issue a divorce order if it the possibility of reconciliation through counselling is deemed possible. If counselling proves unsuccessful, divorce proceedings may resume. This allowance for reconciliation is viewed as a legal postponement rather than a defence against the divorce summons.

Grounds for divorce and mental illness

 

A decree of divorce may be granted due to either party having mental health issues or being unable to contest the divorce summons due to continuous unconsciousness (such as a state of coma). For a divorce to be granted for either of these reasons, it should be proved beyond reasonable doubt that the defendant:

  • Has been admitted to an institution or;
  • Is being held as a state patient, either at an institution or another facility recommended by the Minister of Correctional Services or;
  • Is being held as a mentally ill prisoner at a correctional centre.

Grounds for divorce can also be accepted in cases involving mental health where:

  • The defendant has not been discharged from a mental health institution or program unconditionally within the last two years
  • Two psychiatrists can testify that the defendant is mentally ill with reduced prospects of improvement

Grounds for divorce and continuous unconsciousness

 

In South Africa, the court might issue a decree of divorce where one party is continuously unconsciousness. For this to happen, it must be shown:

  • The defendant has been unconscious for at least 6 months preceding the divorce application
  • That there is no reasonable potential that the defendant will regain full consciousness – in this instance, the testimony of two medical professionals (one should be a neurosurgeon or neurologist) is required

Because South Africa has a ‘no-fault’ divorce system, grounds for divorce may be granted even if one party does not desire the divorce. ‘No-fault’ means that wrongdoing on the defendant’s part doesn’t need to be proven in order for the court to proceed.