The divorce process
GROUNDS FOR DIVORCE
A divorce may be granted by a court based on the following grounds:
1. the irretrievable breakdown of the marriage (for various reasons); or
2. A spouse being suffering from mental illness or the continuous unconsciousness of a spouse
IRRETRIEVABLE BREAKDOWN:
The court needs to be satisfied that the marital relationship has broken down to the extent that there are no reasonable prospects of the marital relationship being restored to that of a 'normal' marital relationship. As a result of South African divorce law operating on a no-fault system, the court will be satisfied if one of the spouses can show that the marital relationship has irretrievably broken down. Therefore a decree of divorce can be granted even if one of the spouses do not wish to get divorced.
The Divorce Act 70 of 1979 lays down the circumstances that need to be proven to show that the marital relationship has irretrievably broken down, namely:
1. The parties have not lived together as spouses for a continued period of at least one year, immediately prior to the date of issuing summons for the divorce action;
2. the defendant has committed adultery and the plaintiff finds it to be a reason that there is no prospects for a continued marital relationship;
3. the defendant was find to be a habitual criminal and is undergoing imprisonment.
MENTAL ILLNESS OR CONTINUOUS UNCONSCIOUSNESS:
A court may grant a decree of divorce based on Mental Illness if the court is satisfied that the Defendant:
1. has been admitted as a patient to an institution in terms of the reception order;
2. is being detained as a state patient at an institution or other place specified by the Minister of Correctional Services; or
3. is being detained as a mentally ill convicted prisoner at an institution.
A court may grant a decree of divorce if a spouse has continuous unconsciousness, due to a physical disorder, if it is satisfied that:
1. the defendants unconsciousness has lasted for a continuous period of at least six months, immediately prior to the institution of the divorce action; and
2. after having heard evidence that there are no reasonable prospects of the defendant gaining consciousness from at least two medical practitioners, one of whom must be a neurologist or neurosurgeon appointed by the court.
CONSEQUENCES OF DIVORCE
The legal duties and responsibilities of a marriage are dissolved upon a divorce being granted.
Civil marriages, civil unions as well as religious marriages conducted by registered marriage officers can be dissolved only by way of a court order granting a decree of divorce. The spouse that wishes to end the marital relationship must issue summons against the other spouse stating the grounds for divorce and provisions for the division of the estate (based on the relevant marital regime or settlement agreement). One of the most important aspects that the summons must cover is the arrangements for the children, born from the marriage or adopted by the spouses.