A marriage may be dissolved by a court for one of the following reasons: the irretrievable breakdown of the marriage; or the mental illness, or the continuous unconsciousness, of a party to the marriage. The irretrievable breakdown of the marriage is the most common ground used for instituting a divorce action. A court must be satisfied that a marriage relationship between the parties to that marriage has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marital relationship between them before granting a decree of divorce on the grounds of the irretrievable breakdown of the marriage.

The circumstances that a court may accept as evidence of the irretrievable breakdown of a marriage can be found in section 4 of the Divorce Act 70 of 1979 and they include:

  • the parties have not lived together as husband and wife for a continued period of at least one year, immediately prior to the date of issuing summons for divorce
  • the defendant has committed adultery and the plaintiff finds it irreconcilable with a continued marriage relationship
  • the defendant was declared a habitual criminal and is undergoing imprisonment

 The court is not limited to these above mentioned circumstances and may consider any other circumstances indicative of the irretrievable breakdown of the marriage. A few examples include: refusal of marital privileges, such as the right to be maintained by each other and to have reasonable sexual relations to the exclusion of anyone else; lack of communication; assault on either of the parties or on one of their children (abuse); drunkenness or drug addiction; perverted sexual relations; or voluntarily undergoing a sex change or sterilisation etcetera. Should a court not be convinced that the marriage has broken down irretrievably and it is evident that there is a reasonable prospect of the parties reconciling through counselling or treatment, the divorce proceedings may be postponed for the parties to attempt reconciliation.

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