Our expert says:
Family law expert
Irretrievable break-down of marriage as ground of divorce
A court may grant a decree of divorce on the ground of the irretrievable break-down of a marriage if it is satisfied that the marriage relationship between the parties to the marriage has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between them.
Section 4 (2) of the Divorce Act lays down three circumstances which a Court may accept as evidence of irretrievable breakdown of a marriage and these 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 divorce action. The Defendant has committed adultery and that the Plaintiff finds it irreconcilable with a continued marriage relationship the Defendant has in terms of a sentence of a Court been declared a habitual criminal and is undergoing imprisonment as a result of such sentence.
This does not mean however that:- the man and wife have to live in separate buildings but the Courts are in general not willing to (even on a undisputed basis), hear the case if the parties are still living in the same house on the date of the application. There must be a reasonable explanation, but even then some judges have refused to grant a decree of divorce. if the Plaintiff is a party to an adulterous relationship it is not fatal for a final divorce order and it may be proof of a real break-down of the marriage. It is correct to disclose the adulterous relationship to the Court. if irretrievable breakdown has been proved, that the court still has discretion to refuse the divorce. See Levy v Levy 1991 (1) SA 614 A where the Appeal Court had decided that a court had no discretion to deny a divorce where the irretrievable breakdown of the marriage has been proved.
Mental illness or continuous unconsciousness as grounds of divorce:
A court may grant a decree of divorce on the ground of the mental illness of the defendant if it is satisfied that the defendant, in terms of the Mental
Health Act 18 of 1973; has been admitted as a patient to an institution in terms of a reception order; 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 such defendant has also 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 the court has heard evidence of at least two psychiatrists, of whom one shall have been appointed by the court, that the defendant is mentally ill and that there is no reasonable prospect that he will be cured of his mental illness.
A court may grant a decree of divorce on the ground that the defendant is by reason of a physical disorder in a state of continuous unconsciousness, if it is satisfied that 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 after having heard the evidence of at least two medical practitioners, of whom one shall be a neurologist or a neurosurgeon appointed by the court, that there is no reasonable prospect that the defendant will regain consciousness.
The court may appoint a legal practitioner to represent the defendant at proceedings under this section and order the plaintiff to pay the costs of such representation.
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