Legal grounds for divorce in South Africa in 2022 | What you need to know
Divorce is one of the most unfortunate things that can happen to anyone. Usually, when someone enters into marriage, they hope for an eternal union, where death can only separate them from one another. However, that is not always the case. So, what are the legal grounds for divorce in South Africa?
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Dissolution of marriage, unlike annulment, is somehow a complicated process. For instance, divorce in South Africa involves property sharing, child custody, spousal maintenance, and visitation rights. According to the Divorce Act of 1979, a couple can only dissolve their union on certain conditions. Importantly, one can be granted a divorce if their reasons are convincing enough to the court.
Legal grounds for divorce in South Africa
Separation is not as easy as many may perceive. As a result, some laws govern the process. Here are the reasons for divorce in South Africa:
1. Irretrievable breakdown
Irretrievable breakdown of marriage is among the significant causes of divorce in South Africa in South Africa. This is when a marital union is permanently broken beyond repair. At this stage, a couple may find it impossible to cohabit due to irreconcilable differences.
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Note that divorce is entirely not based on fault. For example, section 4(2) of the Divorce Act of 1979 lists the following as the reasons for marriage dissolution:
- Assault, cruelty, or domestic violence: Physical, emotional, and financial abuse by one party in a union. Before granting one divorce, the court may allow a couple to settle the matter through the help of marriage counsellors or mediation.
- Malicious dissertation: It occurs when one of the parties hatefully/spitefully abandons their family responsibilities.
- Adultery: Adultery is when a spouse has an intimate relationship outside their union. In most instances, adultery breaks the trust between couples. Most people assume that most marriages end because of adultery, but that is not the case.
- Living apart for more than one year: According to Family Law, a court may grant a couple a divorce if they have lived apart for more than a year.
- Mental illness: Occurs when a spouse suffers a severe mental illness that interferes with their thinking/reasoning patterns.
- Alcoholism or drug addiction: In most instances, alcoholism and drug addiction have severe effects on the well-being of a family.
Source: UGC
- Habitual criminal and imprisonment: When a normal marriage cannot hold due to their spouse being in jail for habitual criminality.
2. Incurable mental illnesses
Mental illness is also another common ground for marriage dissolution in South Africa. However, the plaintiff must prove to the court that the defendant’s mental illness is untreatable. Insanity in South Africa can be proven to the court based on the following grounds:
- If the defendant is confined in a state institution under the Mental Health Act or institution specified by the Minister of Correctional Services.
- If the defendant has been confined continuously for more than two years.
- Two psychiatrists must provide evidence to the court that the defendant is mentally ill and there is no reasonable prospect for remedy. One of the psychiatrists is appointed by the court to assess the defendant's condition.
3. Continuous unconsciousness
According to Family Law in South Africa, continuous unconsciousness is another ground for marriage dissolution. If your spouse has been unconscious for more than six months due to a physical disorder, you are allowed to seek judicial separation in South Africa.
For an informed decision, the court relies on the report of its neurosurgeons. Usually, the court is presented with reports from two neurosurgeons, of which one is appointed to the patient by the court.
FAQs
Below are the most frequently asked questions about marriage dissolution in South Africa. Have a look:
Does cheating affect divorce settlement in South Africa?
Yes, it is a relevant factor in determining the spousal settlement. But, it is not a legal ground on its own.
Can you get divorced without your spouse's consent in South Africa?
Yes. It is not mandatory to get your spouse's consent as long as the grounds for judicial separation are met. It is up to you to prove to the court that you and your partner can no longer maintain a normal marriage. In extraordinary instances, the court may annul the marriage.
What is the fastest way to get a divorce in South Africa?
Source: UGC
There are three types of divorces in South Africa; contested, uncontested, and mediated. Among them, uncontested divorce is the quickest and least expensive. Here, a couple works together to come to divorce terms. Usually, the process may last a few weeks.
How long do you have to be separated before divorce is automatic in South Africa?
You must have lived apart for at least one year.
Is there alimony in South Africa?
No. Unlike in some countries, no law dictates that there should be spousal maintenance in South Africa when dissolving a marriage. Nevertheless, it is among the most problematic issues in judicial separation.
Who pays for divorce in South Africa?
In a marriage dissolution case, the breadwinner should pay for the legal costs if the other party is unemployed.
There are three main legal grounds for divorce in South Africa as outlined in the Divorce Act of 1979. If you find yourself in a toxic marital union, it is best to seek divorce. Often, most couples dissolve their marriages because of irretrievable breakdowns. However, you can always try the mediation route irrespective of the circumstances before proceeding to court.
READ ALSO: List of requirements to study law in South Africa in 2022
Briefly.co.za, in a related piece, shared an informative article on the list of requirements to study law in South Africa in 2022. It is vital for one to understand the procedural aspects of the South African legal system before venturing into the field.
Do you know that one must study History, Business Studies, English, and Life Orientation for them to be accepted into a law school? Check out the article for more requirements!
Source: Briefly News
