When a marriage is broken beyond repair it is referred to as an irretrievable breakdown, and according to the Divorce Act, this provides grounds for divorce in South Africa.
Conditions for the court to grant a divorce
A court may only grant a decree of divorce on two grounds:
- irretrievable break-down of the marriage/civil union; and
- mental illness or continuous unconsciousness.
Divorce is therefore not based on fault but rather the abovementioned grounds.
The irretrievable breakdown of the marriage
With regards to an irretrievable breakdown of the marriage, the court has a wide discretion to determining the reasons for the breakdown, however, it must be satisfied that the parties’ marriage has reached “such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between them”.
The legislative guidelines around divorce
Although the cause of the breakdown is immaterial, some legislative guidelines have been laid down to assist the court in reaching its decision. The circumstances that the court may accept as proof of irretrievable break-down, and which are expressly listed in the Divorce Act, are:
- that the parties have not lived together as husband and wife for a continuous period of at least one year immediately prior to the date of the institution of the action; or
- that the defendant has committed adultery and that the plaintiff finds such behaviour irreconcilable with a continued marriage relationship; or
- that the defendant has in terms of a sentence of a court been declared an habitual criminal and is undergoing imprisonment as a result of such sentence.
The courts can also rule based on different circumstances
It is important to note that the abovementioned circumstances do not exclude any other circumstances which may lead to an irretrievable breakdown. Courts may find that a marriage has irretrievably broken down on the basis of completely different circumstances.
Furthermore, the requirement of irretrievable break-down remains paramount. Despite the existence of one of the three circumstances listed above, a court may still find that the marriage has not broken down irretrievably.
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