Understanding legal grounds for divorce

Before 1979, the grounds for divorce in South Africa included adultery, malicious desertion, incurable mental illness and imprisonment for at least five years of a spouse who was a habitual criminal. Essentially, this meant that in divorce there was always an innocent and a guilty party. Then, in 1979, the Divorce Act was introduced. This redefined the grounds for divorce to include the irretrievable breakdown of a marriage, mental illness or the continuous unconsciousness of a party to the marriage. Many people heading for the divorce courts wrongly think that if their spouse has committed adultery it will have a positive effect on their financial outcome from the proceedings and will support an argument for reparations.

While there are limited areas in our law where the actions of a spouse could affect the process, these are few and far between and the main ground for divorce is that of an irretrievable breakdown. In a divorce, the court must be satisfied that a marriage has reached such a state of disintegration that there is no reasonable prospect of a normal marriage relationship being restored between the parties. The Divorce Act does provide some guidelines that can be used to determine whether or not the marriage has irretrievably broken down. It is important to note that these are not the only grounds that parties may use to show that their marriage is at an end, nor does the list of viable grounds set out factors that will always be successful for proving a relational breakdown in court.

The supporting factors for irretrievable breakdown include the parties not having lived together as man and wife for a continuous period of one year prior to the initiation of the divorce action. This does not mean that the couple physically lives in separate homes but allows for a situation where parties no longer have intercourse, communicate with one another or interact in a way that could be considered normal for a married couple. If one party has committed adultery and the other spouse finds this behavior irreconcilable with a continued marriage relationship, the courts will take this into account. This means that adultery is not the deciding factor, but can be helpful in convincing the court that the marriage is at an end.

Other factors that indicate a marriage has irretrievably broken down could include an absence of love or affection between the spouses, a lack of effective communication, emotional, verbal or physical abuse by one or both parties, or substance abuse.

A court will seldom refuse to grant a divorce on the basis that an irretrievable breakdown has not been proved. In cases where an irretrievable breakdown has been proved on an acceptable ground, the court generally does not have the discretion to refuse a divorce (although there are very limited exceptions to this rule).

Although the breakdown of a marriage can happen for many reasons, parties that open divorce proceedings cannot presume that wrongdoing by their spouse will necessarily put them at an advantage in the context of the law.

By Gillian Lowndes – partner and family law specialist at Lowndes Dlamini