Our expert says:
Family law expert
There are only two grounds for divorce:
* Irretrievable breakdown; and
* Mental illness or continuous unconsciousness.
The court may grant a divorce on the ground of the irretrievable breakdown of the marriage. The cause of breakdown is immaterial but legislative guidelines have been put in place to assist a court in determining a prima facie case for divorce.
Some of the circumstances which the court may accept in order to prove irretrievable breakdown are:
1. that the parties have not lived together as husband and wife for a continuous period of at least one year;
2. that the defendant has committed adultery or that the plaintiff finds it irreconcilable with a continuous marriage relationship; or
3. the defendant has in terms of a sentence of a court been declared an habitual criminal and is undergoing impeachment.
These are not the only proof of marriage breakdown. Thus, for example, the court may find that refusal of marital privileges, mental and physical cruelty, drug abuse, alcohol abuse, incompatibility, the plaintiff's own adultery or even unilateral repudiation, constitutes sufficient evidence of breakdown.
Mental illness or continuous unconsciousness
Section 5 of the divorce Act empowers the court to grant a divorce on the ground of mental illness or continuous unconsciousness. The cause of action runs on the ground of "supervening inaccessibility of recovery".
The defendant has been admitted to an institution as a mental patient in term of an inception order under the Mental Health Act and is being detained as a President's patient, or a mentally ill convicted prisoner in an institution or prison hospital, and He has been unconditionally discharged from the respective institution or place of detention for a continuous period of at least two years prior to the institution of the divorce action, and On the evidence of at least two psychiatrists appointed by the court, the defendant is mentally ill or there is no reasonable prospect of his recovery.
The defendant is unconscious by reason of a physical disorder and the defendant's unconsciousness has lasted for a continuous period of at least 6 months.
In general a Court has no discretion to deny a divorce where the irretrievable breakdown of the marriage has been has been proved.
Bertus Preller - Family Law Attorney
KWJ Inc - Cape Town
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