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.
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 between the parties to the marriage has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marital relationship between them.
Divorce Act 70 of 1979 lays down the circumstances that a court may accept as evidence of the irretrievable breakdown of a marriage:
- The parties have not lived together as husband and wife for a continued period of at least one year immediately prior to the date issuing summons for divorce.
- The defendant has committed adultery and the plaintiff finds it irreconcilable with a continued marriage relationship.
- The defendant was declared a habitual criminal and is undergoing imprisonment.
The court still has discretion not to grant a divorce order, and may postpone the proceedings or dismiss the claim if it appears to the court that there is a reasonable possibility that the parties may reconcile through counselling. If reconciliation is unsuccessful after a few months, the parties may proceed with the same summons. The summons will usually contain the averment that further counselling and/or treatment will not lead to any reconciliation. A court must, therefore, be satisfied that the marriage is really broken down and that there is no possibility of the continuation of a normal marriage.
Where the parties reconcile and live together again after the summons was issued and served, it does not necessarily end the divorce proceedings. If, however, the reconciliation is unsuccessful after a few months, the parties may proceed with the same summons. It is extremely important to make sure that the summons is withdrawn formally if you do decide to reconcile. Withdrawal of the summons is formally affected when the plaintiff serves a document referred to as a notice of withdrawal of the summons on the defendant or his/her attorney. If this is not done, a divorce order may be obtained by default without the defendant being aware of it. If a divorce is obtained in this manner, the aggrieved party may approach the court to set aside the order.
Since the present law on divorce is no longer based on the principle of fault, defences like insanity or the plaintiff’s own adultery are no longer valid defences. Therefore, if a divorce is instituted on account of an irretrievable breakdown, there is in fact no defence to prevent the divorce from proceeding. But if the court finds that there is a reasonable possibility of reconciliation, it may postpone the proceedings in order that the parties attempt reconciliation; this, however, is not a defence, but merely amounts to a postponement.