The Divorce Act of 1979 introduced 3 grounds for divorce:
1. Irretrievable breakdown of the marriage
2. Continuous unconsciousness of a spouse
3. Mental illness of a spouse
What is an irretrievable breakdown?
When a marriage relationship is permanently broken beyond repair, it is referred to as an irretrievable breakdown. Marriages may break down for many reasons, not necessarily through misconduct by either of the parties. Many circumstances can be proof of the permanent breakdown of a marriage. The Divorce Act lists some of these circumstances in Section 4(2):
LIVING APART FOR MORE THAN A YEAR
When spouses have not lived together as husband and wife for a continuous period of at least one year immediately prior to the date on which divorce proceedings were started;
When a spouse hatefully and spitefully leaves his/her family and therefore fails to contribute to the maintenance of his/her family members and related responsibilities;
ALCOHOLISM OR DRUG ADDICTION
When a spouse is addicted to alcohol or drugs, irrelevant of any rehabilitation programs underway;
HABITUAL CRIMINAL & IMPRISONMENT
When a spouse is in prison and the other spouse wishes to get divorced due to the fact that a normal marriage relationship is no longer possible;
When a spouse suffers any condition which causes serious disorder in that spouse’s behaviour or thinking patterns;
When a spouse cheats, having an intimate or romantic relationship with a third party – breaking the trust to such an extent that a normal marriage relationship is no longer possible;
ASSUALT, CRUELTY OR DOMESTIC VIOLENCE
Physical, emotional, psychological or financial abuse by a spouse;
If a divorce is instituted/started because of an irretrievable breakdown of the marriage relationship, no defence can be raised to prevent the divorce from proceeding. Should the court, however, not be convinced that the marriage has broken down without the reasonable possibility of reconciliation, the court may postpone/delay the proceedings to give the parties time to attempt reconciliation. Should the parties be unable to settle their differences (with or without divorce mediation and/or marriage counselling), the divorce proceedings will continue.
Is adultery a ground for divorce in South Africa?
Extra-marital affairs (adultery) or other matrimonial offences may lead to an irretrievable breakdown when one or both of the parties find it impossible to continue a normal marriage relationship as a result thereof, but it is not in itself a stand-alone ground for divorce in South Africa as the fault principle no longer applies.
In summary, according to South African law, it is not important who caused the marriage to end. It takes two to make (or break) a healthy marriage relationship.
What is a NO FAULT divorce system?
South Africa has a ‘no fault’ divorce system. This means that if one spouse believes that the marriage relationship has broken down permanently, the other spouse’s consent is not required for the Court to grant a Final Order of Divorce. As divorce is not based on fault in South Africa, it is not important who caused the marriage relationship to break down.