What are the Grounds for Divorce in South Africa?
Few people enter into a marriage expecting the worst. Most newlyweds cannot possibly envision their union disintegrating even in their most pessimistic nightmares. In the real world though, marriages do fail. Couples drift apart and commitments break down. When this occurs, one or both parties may consider a divorce to be the only viable solution. But what reasons can you give for a divorce and how do you go about getting one in South Africa? What are the Grounds for Divorce in South Africa?
The two main reasons for divorce are, if the marriage has irrevocably broken down or if mental illness or unconsciousness has occurred. Let us discuss this in further detail.
There are 2 legally acceptable grounds for divorce –
- The marriage has irrevocably broken down – If the court is satisfied that the relationship has deteriorated between the two parties to an extreme enough level and that there is little to no chance of reconciliation, a divorce may be granted. Reasons for this breakdown may include but are not limited to, instances of abuse, adultery, drug use, etc.
- Mental illness or unconsciousness – If a person’s spouse is verifiably mentally ill, for example, if they have been institutionalized or diagnosed by a mental health professional, a court may accept this fact as legitimate grounds for divorce. Additionally, if a spouse has been unconscious for at least 2 years, a divorce may also be granted.
The breakdown of a marriage can be attributed to a lack of intimacy and constant fighting, so these are legitimate grounds for divorce.
A detailed guide to the grounds for divorce, the related legal procedures and the process of separation can be found in The Divorce Act of 1979. Prior to the passing of this act, divorce was generally decided on the principle of fault or guilt, but criticisms of this system lead to our modern, more flexible system of separation.
The History of Divorce in South Africa
Before the implementation of the current divorce act, a legal separation could only be granted on account of adultery, malicious desertion and insanity. With the exception of insanity, this system generally assumed that a marriage’s failure was the result of one party’s misbehaviour.
The accepted position was that a failed marriage normally comprised one innocent and one guilty party. This assumption led to courts settling cases by figuring out which party caused the problem and then ruling in favour of the other, aggrieved individual.
Obviously, the subsequent process of dividing assets was heavily influenced by this decision and judges would usually side decisively with the party that was deemed innocent. This arrangement caused most divorces to devolve into finger-pointing and random allegations of wrongdoing as it was understood that the ‘loser’ would suffer the financial consequences.
Criticism abounded and eventually, the system of divorce was revolutionised with the new focus being centred on more ‘realistic’ views about what causes a marriage to fail and an emphasis on the fact that often, both parties are in some way responsible for the dissolution.
It should be noted however that conduct during the marriage does still play a role in the court’s decision with regard to the division of assets.
Can the Court Refuse a Divorce Request In South Africa?
Yes, a judge may refuse your petition for divorce. The court has plenary power when accepting or rejecting divorce requests. There are several factors that may cause a judge to reject or temporarily suspend proceedings –
- Disagreement over the state of the relationship – Although the judge will usually defer to the opinions of the parties involved, he/she may determine that the spouses have not provided sufficient grounds for divorce and that the issues at hand are not irreversible in nature. This rejection is, however, very seldomly enacted.
- Safeguarding of Minors – As noted in section 6 of the divorce act, the welfare of any children involved is of paramount importance. If the court determines that the divorce may negatively impact the well-being of a child to an unacceptable extent, for example, if neither party would be able to financially support the child following the divorce, the process may be rejected or postponed until this situation is remedied.
- Regarding Religious Prescript – If one or both parties would not have their divorce recognized by their religious community even following a legal divorce, the court may postpone the proceedings until such a time as the divorce is finalized as according to the religious prescripts.
How are Assets Divided After a Divorce?
Following a divorce, the assets of both parties will be divided based on 1 of 3 scenarios –
- Community of property – Partners married under the community of property will have their estates joined in their entirety. This means that the ownership of property and assets, as well as any and all debts, will usually be split down the middle during a divorce.
- An antenuptial contract(ANC) – This is an umbrella term used to describe any marriage contract that excludes the community of property. An antenuptial contract is usually determined and agreed to by both parties at the outset of the marriage. The assets will therefore be divided based upon the agreed arrangement.
- No contract – If the spouses did not agree to any formal contract during the marriage, the division of assets will normally be a lengthy, complicated process that is determined by divorce lawyers, agreements, and concessions between the two parties and sometimes by the rulings of the judges themselves. The original estates of each party will normally be returned to them after adjusting for profits and losses accrued during the marriage.
How do I get a Divorce In South Africa?
Perhaps you’re already considering getting a divorce. After reading through all this information, you’ve probably already realised how beneficial it would be to invest in a divorce lawyer.
An attorney, while recommended, is not strictly necessary. You can get divorced in a regional or high court without legal aid. Once the summons is delivered by the sheriff of the court you may set a date and proceed with the legal process.
Your spouse’s involvement and presence are not absolutely necessary and the legal process can take place even if one party refuses to take part. Your local magistrate court will provide you with all the relevant paperwork and legal forms necessary for divorce.
Remember that divorces must be formalized in a court of law or they will not be officially recognized. Even if both parties consent to the separation, the marriage will still be in effect until the legal process is completed.
The do-it-yourself divorce method is highly effective depending on the type of divorce at hand. In other situations, an attorney may be preferable even if the costs seem excessive.
What are the Types of Divorce?
There are 3 types of divorce –
- Uncontested – An uncontested divorce occurs when both parties agree to the divorce and there is not much argument over the division of assets. In this divorce, the legal process may be simple and relatively cheap as divorce lawyers are generally not needed to plead any case.
- Contested – If a spouse does not agree to the divorce and makes their case in court as to why the marriage is salvageable, the process may become drawn out and costly as attorneys will usually be required to argue either side effectively. Likewise, if the parties cannot agree to the division of assets, the process can again extend in scope and cost with some cases even lasting a number of years.
- Default – This occurs when the summons is successfully issued but one party does not show up to court. In this scenario, the court will most likely side on behalf of the present spouse as the other party is not available to argue their case.
What if My Partner Refuses to get Divorced?
Both members of the marriage do not need to agree to the divorce for it to happen. If you wish to file for divorce but your partner refuses, you will need to do so independently and ensure that your unwilling spouse receives their court summons.
From there, your spouse may either argue to the court, or via an attorney that the marriage should not be ended which would result in a contested divorce, or your partner may not show up to court which would result in a default divorce.
What Factors Influence Divorce Proceedings?
As mentioned previously, the country’s legal system has attempted to move away from its original idea of establishing a guilty party upon whom they may blame the failure of the marriage.
Modern courts will instead work under the assumption that the divorce is a result of a variety of factors and the ‘blame’ does not rest solely on one party’s shoulders.
However, section 7 of the Divorce Act of 1979 does specify that when determining the payment of maintenance from one party to the other, certain factors may be considered at the discretion of the court, these factors include –
- Earning capacity
- Financial Needs
- Age of Both Parties
- Standard of living prior to divorce
- Conduct during marriage insofar as it impacted the deterioration of the marriage
That last point is a particularly important one. It basically suggests that if the court finds evidence of extreme marital misconduct on one side, it may side on behalf of the more ‘innocent’ party.
This point has led to criticism of our current divorce laws as it is believed to show that the fundamental assumption that there is a ‘good’ side and a ‘bad’ side during a divorce is still prevalent.
What is an Annulment and How is it Different from Divorce?
An annulment achieves the same basic goal as marriage except for one important factor, an annulment does not just end the marriage, it also wipes it off the record entirely.
Annulments are only available in cases that are deemed voidable marriages.
The most common scenarios that would allow for annulment procedures are –
- Minors – If the minor was married without formal consent given by the parents, if the parents rescind their consent within 6 weeks of the marriage or if the minor wishes to end the marriage within 3 months of turning 18 years old.
- Duress – If an individual was forced or threatened into getting married.
- Fraud – If a spouse lied or misled their partner in a way that led to the marriage.
- Pregnancy – If the husband was not aware that his partner was pregnant by another individual when entering into the marriage.
- Physical or mental impairment – If a spouse develops or hides certain impairments. These include, but are not limited to, impotency or severe mental illness.
- Drug use and addiction – If a spouse is found to engage in forms of alcoholism or drug addiction.
In Conclusion – What are the Grounds for Divorce in South Africa and What Happens During a Divorce?
A divorce can be issued if the marriage and thus, the relationship between the 2 individuals, is shown to have broken down to a point beyond repair.
This breakdown may include reasons such as…
- drug addiction and many others.
Mental illness or long-term unconsciousness are also valid reasons for filing for divorce.
The court may not grant the divorce request if there are specific issues at play, for example, if the wellbeing of a minor involved cannot be properly maintained following a divorce or if certain religious prescripts are being contested.
In certain scenarios, an annulment may be applicable, which would not only end the marriage but also wipe it from the record.
The consent of both individuals is not required for a divorce to be finalized. As long as both parties are made aware of the relevant court dates and proceedings and have an opportunity to argue their cases, the court may proceed with the case even if only one party is present. The division of the estate and relevant assets is determined by contracts and the case itself. If the couple has agreed to a marriage in a community of property or an ANC, the assets will be split according to those documents.
If there is no formal contract, the estates will be split depending on multiple factors ranging from their form at the outset of the marriage, the gains and losses made since, the age, needs and lifestyle of the parties and any misconduct that may have contributed to the divorce itself.
Disclaimer LAW101: All of our posts are for research purposes only. Law 101 aims to assist its readers with useful information on the laws of our country that can guide you to make decisions in line with the South African Governmental Laws currently in place. Although in many instances, our posts cite the constitution, they are intended to assist readers who are looking to expand their knowledge of the law. Should you require specific legal advice we advise you to get in touch with a qualified legal expert.
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