What are the grounds for a divorce?

The grounds for a Divorces are regulated in terms of the Divorce Act 70 of 1979 (“the Divorce Act”), while other Acts will apply which regulates other aspects vital to the process, such The Matrimonial Property Act 88 of 1984 and Mediation in Certain Divorce Matters Act 24 of 1987, to name a few, we do not look towards those Acts for the purposes of this article.

However for an explanation as to what the grounds for divorce are we need look no further than the Divorce Act. In terms of Section 3 of the Divorce Act, the following are the recognised grounds:

1. the irretrievable break-down of the marriage;

2. the mental illness or the continuous unconsciousness of a party to the marriage.

We shall be taking a closer look at 1 above, the irretrievable breakdown of the marriage.

The Divorce Act continues, at Section 4, to set out that the court will only grant a divorce if it is satisfied that the 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.

The Divorce Act then regulates, but does not limit, the grounds and proof required which a Court will take into consideration when determining whether the relationship has indeed reached the stage of an irretrievable break-down, these are:-

1. that the parties have not lived together as husband and wife for a continuous period of at least one year immediately prior to the date of the institution of the divorce action

2. that the defendant has committed adultery and that the plaintiff finds it irreconcilable with a continued marriage relationship; or

3. that the defendant has in terms of a sentence of a court been declared a habitual criminal and is undergoing imprisonment as a result of such sentence.

We state above that the Divorce Act does not limit the grounds and any other facts or circumstances which may be indicative of the irretrievable break-down of a marriage may, at the Court’s discretion, be taken into consideration, these may simply include that the parties no longer wish to remain married. This is of importance as the concept of Judicial Separation is no longer applicable. Therefore should one party wish to get divorced, and the Court accepts the reasoning, this will be sufficient.

The Court held in CC v CM 2014 (2) SA 430 (GJ) the following:

In determining whether a marriage has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between the parties, it is important to have recourse to the history of the marriage and the parties' regard thereto as evidenced in their pleadings.

The irretrievable breakdown of a marriage is a question of law or fact that may conveniently be decided separately from any other question because a court may order that all further proceedings be stayed until such a question has been disposed of. Where it has been shown that a marriage has irretrievably broken down without prospects of reconciliation, a court does not have the discretion as to whether a decree of divorce should be granted or not, it has to grant the same.

***Kindly note that the contents of this article are intended for information purposes only and does not constitute legal advice. Please consult an attorney.

In our next article, we shall examine some preliminary steps before an action for divorce can be instituted.