What are the grounds for divorce in South Africa?

People who choose to get married never quite think that their fairy-tale wedding and romantic honeymoon would, ultimately, lead to a divorce
People who choose to get married never quite think that their fairy-tale wedding and romantic honeymoon would, ultimately, lead to a divorce

Raising a family together is hard work, and sometimes marriage and relationships don't survive. But splitting up when there are kids involved is even harder. Parent24's #dignifieddivorce series is here to help parents navigate the legal and emotional implications of a divorce. 

People who choose to get married never quite think that their fairy-tale wedding and romantic honeymoon would, ultimately, lead to a divorce. 

It may not be in the proverbial cards, but realistically people evolve, and after the dust has settled, some things might change in the marriage and relationship. And if there are continuous disagreements, destructive behaviour and tension, it might be time to look into the dreaded "d" word: divorce.

Must read: Women in customary marriages now have equal rights to marital property

Much like getting married, getting divorced is a legal process that needs to be recognised and granted by a court of law. So, it’s not as simple as going separate ways and living different lives and thinking the marriage dissolves by itself.

"Couples who no longer want to stay married also need to be aware of the fact that there needs to be specific grounds for a divorce to be legally dissolved by the court," clarifies Adv. Jackie Nagtegaal, Managing Director at the award-winning legal service provider LAW FOR ALL.

Primary grounds for divorce in South Africa

1. The irretrievable breakdown of the marriage

If the relationship has disintegrated to such a point that it cannot be restored (and there is no feasible future of it being restored), then a court may grant a decree of divorce. Again, the law - specifically the Divorce Act 70 of 1979 – does stipulate certain circumstances that a court is likely to accept as irreversible damage to a marriage:

• The couple hasn’t lived together as spouses for a continued period of at least one year before the divorce summons is issued

• If the defendant (the person who is issued the divorce summons) has committed adultery and the plaintiff (the person who filed for divorce) believes there is no path to reconciliation in the marriage

• The defendant has committed multiple crimes and/or is serving time in jail.

"It’s also important to note that in most of these circumstances, a court still has the discretion to not grant a divorce order, if it determines that there is reasonable possibility for the couple to reconcile with the help of counselling," adds Nagtegaal.   Do note: if the couple tries counselling and it is unsuccessful, they may approach the court and proceed with the divorce using the initial summons.

Also read: On Global Fair Divorce Day, we speak to a local divorce mentor about how to ensure a fair divorce

2. Mental illness 

For a court to grant a divorce based on the defendant’s mental illness, it must be satisfied that he/she has been admitted to an institution, is being detained as a patient of the State in an institution, or is being held as a convicted mentally ill prisoner in a correctional services facility. 

The court will usually want to hear evidence from two psychiatrists (one of which will be appointed by the court) to help determine the mental capacity of the defendant and if there is a reasonable prospect of them getting better.

3. Continuous unconsciousness 

If the defendant is a state of continuous unconsciousness (a state in which a person is completely unaware of both self and external surroundings, and unable to respond meaningfully to external stimulation), a court may grant a decree of divorce. The court will take whether or not the person’s unconsciousness has lasted for a continuous period of least six months prior to the initiation of the divorce process into consideration. What’s more, the court will need to hear evidence from two medical practitioners, one of whom needs to be a neurologist or neurosurgeon  appointed by the court. 

Get a friend in the law on your side

"Going through a divorce can be emotionally and financially draining. The proceedings can take up to 3 years and costs can reach as high as R40 000. It pays to have legal insurance cover, which can protect against paying hefty legal bills, and legal professionals to guide clients through the process, mediate on their behalf and assist with the application in court," says LAW FOR ALL’s Nagtegaal. 

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