Grounds for divorce

A marriage may be dissolved by a court on the following grounds:

  • the irretrievable breakdown of the marriage; or
  • the mental illness, or the continuous unconsciousness, of a party to the marriage.

Irretrievable breakdown:

A court may grant a decree of divorce on the grounds of the irretrievable breakdown of the marriage if the court is satisfied that the marriage relationship has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marital relationship between them.

In terms of South African law, we have a ‘no fault’ system of divorce, which means that a divorce will be granted if one of the parties believe that there has been an irretrievable breakdown of the marriage relationship and that there are no reasonable prospects of the marriage being restored. A marriage can therefore be dissolved even if one of the parties does not want to get divorced.

Mental illness or continuous unconsciousness:

Mental illness

A court may grant a decree of divorce on the grounds of the mental illness of the defendant if the court is satisfied that the defendant:

  • has been admitted as a patient to an institution in terms of the reception order;
  • is being detained as a state patient at an institution or other place specified by the Minister of Correctional Services; or
  • is being detained as a mentally ill convicted prisoner at an institution

Continuous unconsciousness

A court may grant a decree of divorce on the grounds that the defendant is, by reason of a physical disorder, in a state of continuous unconsciousness, if it is satisfied that:

  • the defendant’s unconsciousness has lasted for a continuous period of at least six months immediately prior to the institution of the divorce action; and
  • after having heard evidence from at least two medical practitioners, one of whom must be a neurologist or a neurosurgeon appointed by the court, there is no reasonable prospect that the defendant will regain consciousness.

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