Grounds for Divorce in South Africa

A marriage can be dissolved either by the death of one of the parties or by divorce. Grounds which a court will consider when dissolving a marriage by way of a divorce, are the following:

Irretrievable Breakdown as Reason for Divorce

The Divorce Act 70 of 1979 sets out circumstances when a court may accept the irretrievable breakdown of the marriage as a ground for divorce. These are when:

  • The parties haven’t lived together as wife and husband for a continued period. This period has to be at least one year immediately before the date of issuing a summons for divorce.
  • One of the parties has committed adultery and the other party finds it irreconcilable to continue with the marriage relationship.
  • One of the parties has been declared as a habitual criminal and is (or will be) undergoing imprisonment.
  • Any other facts or circumstances which may be indicative of the irretrievable break-down of a marriage.

Mental Illness as Reason for Divorce

For a court to grant a decree of divorce on the ground of mental illness, the court must, under section 5 of the Divorce Act, be satisfied that a party:

  • has been admitted as a patient to an institution in terms of a reception order; or
  • 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.

The court must also be satisfied that such a party has for at least two years immediately before the start of the divorce proceedings not been discharged from any of the above institutions and that there’s no reasonable possibility that the person will be cured of the mental illness.

Continuous Unconsciousness as Reason for Divorce

In accordance with Section 5 of the Divorce Act, a court may grant a divorce if it’s satisfied that one of the parties suffers from continuous unconsciousness where:

  • the unconsciousness has lasted for a continuous period of at least 6 months immediately before the institution of the divorce action; and
  • from evidence of at least 2 medical practitioners (one of whom must be a neurologist or a neurosurgeon appointed by the court), there is no reasonable prospect that the party will regain consciousness.

Next Steps

Should you wish to make contact with one of our team members, kindly e-mail us at divorce@barnardinc.co.za or phone us on 0861 088 088.

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