When and under what circumstances can one file for divorce. The Divorce Act 70 of 1979 providers for three no- fault grounds of divorce in South Africa:
- The irretrievable breakdown of the marriage as outlined in Section 4.
- The mental illness of a party to the marriage as outlined in Section 5.
- The continuous unconsciousness of a party to the marriage as outlined in Section 5.
This article focuses on Section 4 of the Divorce Act, and more specifically the guidelines as set out in Section 4(2) as to when a marriage is regarded as having broken down irretrievably. It must however be noted that the aforesaid guidelines are merely examples of instances where the probability is high that the marriage relationship has broken down and that there are no reasonable prospects for the restoration of the marriage.
Section 4(2) guidelines:
- Section 4(2)(a): 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. Here the focus rests not as much on the physical separation but more on the termination of the termination of the consortium.
- Section 4(2)(b): The defendant has committed adultery and the plaintiff finds it irreconcilable with a continued marriage relationship.
- Section 4(2)(c): A court has declared the defendant a habitual criminal and the defendant is undergoing imprisonment as a result.
Thus, generally speaking, the court has no discretion whether or not to grant a divorce if one of the grounds for divorce has been proven.
A divorce whether contested or uncontested is inherently stressful, and a matter that should be dealt with by a professional whose priority it is to ensure your wellbeing and best interest. Here at Voss Wiese Haggard Inc (Attorneys) we do just that, we take care of our clients. Should you require assistance in a divorce, or should you need advice in contemplation of the divorce you can phone our office and arrange a consultation with one of our professional staff members who will take care of you.