Divorce law

 1.  How can a person get a divorce?

Divorce proceedings can either be instituted in the High Court or the Regional Court. In South Africa a marriage can only be dissolved by order of a Court. A divorce action is instituted by the spouse who wishes to end the marriage by serving a summons on the other spouse. The other spouse can decide whether he/she wishes to oppose the divorce or not.

2.  When can spouses get a divorce?

According to Section 3 of the Divorce Act 70 of 1979 (“the Act”) a marriage may be dissolved by Court order on the following two grounds:

  • the irretrievable breakdown of the marriage with no reasonable prospects of restoring the marital relationship between the spouses; or
  • the mental illness or the continuous unconsciousness of a party to the marriage.

3.  The irretrievable breakdown of the marriage

Section 4 of the Act provides the circumstances that a Court may accept as proof of the irretrievable breakdown of a marriage.

  • the spouses not living together for a continuous period of at least one year immediately prior to the date issuing of the summons for divorce;
  • The defendant has committed adultery and the plaintiff finds it irreconcilable with a continued marriage relationship;
  • The defendant has committed habitual criminality and is undergoing imprisonment as a result of such sentence.

The Court will not be limited to these circumstances and can take account of any other circumstances which may be indicative of the irretrievable breakdown of a marriage. Examples that come to mind are:

  • A husband’s failure to support or provide a home for his wife and family (as long as this is not through circumstances beyond his control);
  • Failure by the wife to maintain the house or care for the couple’s children;
  • Refusal of marital privileges (the right to be maintained by each other and to have reasonable sexual relations to the exclusion of anyone else);
  • Assault on either of the parties or on one of their children;
  • Drunkenness or drug addiction;
  • Constant sulking or nagging;
  • Obsession with a particular religious sect or political group;
  • A too-intimate relationship with another man or woman that does not amount to adultery;
  • Perverted sexual relations; or
  • Voluntarily undergoing a change of sex or sterilisation.

The Court must be satisfied that the relationship has reached such a state of disintegration that there is no possibility of the continuation of a normal marriage.

If the court is not convinced that the marriage has broken down irretrievably and it appears to the Court that there is a reasonable possibility that the parties may reconcile through counselling or treatment, the proceedings may be postponed in order that the parties may attempt reconciliation.

4.  Mental illness or continuous unconsciousness

Mental illness
Section 5(1) of the Act provides that a decree of divorce may be granted on the grounds of the mental illness of the defendant if the Court is satisfied that the defendant:

  1. has been admitted as a patient to an institution in terms of the reception order;
  2. 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.

A divorce order may also be granted if the defendant has, for a continuous period of at least two years immediately prior to the institution of the divorce action, not been discharged unconditionally as such a patient, state patient or mentally ill prisoner; and if the Court has heard evidence from at least two psychiatrists, one of whom must have been appointed by the Court, that the defendant is mentally ill and that there is no reasonable prospect that he/she will be cured of his/her mental illness.

Continuous unconsciousness
Section 5(2) of the Act provides that a decree of divorce may be granted on the grounds that the defendant is, by reason of a physical disorder, in a state of continuous unconsciousness, if it is satisfied that:

  1. the defendant’s unconsciousness has lasted for a continuous period of at least six months immediately prior to the institution of the divorce action; and
  2. after having heard evidence from at least two medical practitioners, one of whom must be a neurologist or a neurosurgeon appointed by the court, there is no reasonable prospect that the defendant will regain consciousness.

5.  What will happen to the children upon divorce?

Arrangements, such as custody and maintenance, regarding the children born from the marriage can be agreed upon by both spouses.

Section 6 of the Act states that a decree of divorce will not be issued until the Court is satisfied that proper provisions was made for the welfare of any minor or dependent child of the marriage.

If no agreement can be reached between the spouses, the Court will make the decision after considering the circumstances of the matter, together with the observation and recommendations by a Family Advocate.

In practice, the spouses and the minor child(ren) will have to attend a consultation at the Family Advocate’s office.  They will also consult with a social worker.  The Family Advocate will then draft a report wherein he will make certain recommendations to the Court.  These recommendations will be what the Family Advocate considers is in the best interests of the minor child(ren).

6.  How will the property be divided upon divorce?

In South Africa, the marital regime of the parties determines how the assets will be divided upon dissolution of the marriage, the assets being those at the time of the divorce.

A court granting a decree of divorce may in accordance with a written agreement between parties make an order with regard to the division of the assets of the parties.

If no agreement can be reached between the spouses, the property must be divided according to whether the spouses were married in community of property or out of community of property, with or without the accrual system.

It is important to note that in certain circumstances a spouse may be entitled to a portion of the other spouse’s pension.  Whether a spouse is entitled to a portion and, if so, to what percentage is dependent on the circumstances of each case i.e. whether they were married in or out of community of property etc.

In general an uncontested divorce can be finalised within two months, whilst a contested divorce will obviously take much longer, even in excess of a year.

If your divorce is uncontested, you will normally enter into a deed of settlement with your spouse.  A summons, together with the deed of settlement, will be issued and served upon your spouse by the Sheriff.  10 days after the summons was served, you may obtain a court date.  On the court date, only you (the Plaintiff) will have to testify and if the court is satisfied, a decree of divorce will be granted.

If your divorce is contested, the process takes much longer.  After the Sheriff served the summons on your spouse, he/she must defend the matter within 10 days and deliver his/her Plea and Counterclaim within 20 days thereafter.  Both parties have to file their discovery affidavits and documentation thereafter and a trial date must be obtained.  At the trial of the matter, you and your spouse (and any other witnesses) will have to testify to prove your case.  After hearing all the evidence, the court will hand down its judgment.

It is advisable to obtain the help of an experienced attorney to conduct the proceedings for a divorce in order to avoid any potential pitfalls in the process.