Navigating the grounds for divorce: From fault to no-fault

divorce laws
10 Nov 2023

Introduction

South Africa has seen a transformative journey in its divorce laws, a transition from the fault-based approach to the more contemporary no-fault system. This article explores the evolution of divorce laws in South Africa, delving into the historical context and the modern application of these laws.

Historical foundations and the shift away from fault

Historically, South African divorce laws were firmly rooted in the fault principle. Under this system, one spouse was deemed guilty, while the other was considered innocent, creating a contentious and often adversarial environment within divorce proceedings. This approach had its drawbacks, notably perpetuating acrimony and hindering amicable separations.

The Divorce Act of 1979: A paradigm shift

The pivotal moment in South African divorce law reform arrived with the passage of the Divorce Act of 1979. This ground-breaking legislation marked a significant departure from the fault-based system, introducing three key grounds for no-fault divorce. These grounds reshaped the landscape of divorce laws in South Africa, emphasising the importance of irretrievable breakdown as the central criterion for divorce.

Irretrievable breakdown of the marriage: The defining criterion

At the heart of the Divorce Act of 1979 is the concept of the “irretrievable breakdown” of a marriage. This criterion, outlined in Section 4(1) of the Act, is assessed through two critical criteria:

  1. Abnormal marriage relationship: This criterion scrutinises whether the marriage has deviated from the norm and whether it has become unsustainable in its current state.
  2. Lack of reasonable prospect for restoration: The second criterion assesses whether there is any reasonable hope or prospect of reconciliation between the spouses, acknowledging the importance of amicable dissolution.

How courts assess marriage breakdown

Understanding the methodology employed by courts in evaluating the breakdown of a marriage is crucial. Courts consider not only past events but also the present attitudes and dynamics between spouses as crucial factors in their assessment. This approach encourages a more holistic understanding of the marriage’s current state.

Supplementary guidelines in Section 4(2)

In addition to the core criteria, Section 4(2) of the Divorce Act supplements the grounds for divorce with additional guidelines. These guidelines are not exhaustive but serve as illustrative factors in divorce proceedings:

  • Living apart: Parties must not have cohabited as husband and wife for at least one continuous year before initiating divorce proceedings, with some exceptions considered.
  • Adultery: Section 4(2)(b) discusses the requirement that the defendant must have committed adultery, emphasising the importance of presenting evidence in such cases.
  • Imprisonment: The guideline concerning imprisonment is explored, particularly in cases of habitual criminality and its interaction with other divorce grounds.

Divorce on the grounds of incurable mental illness or continuous unconsciousness

Section 5 of the Divorce Act introduces grounds for divorce based on mental illness and continuous unconsciousness. These provisions are examined in-depth, including the rationale behind their inclusion and the specific criteria for eligibility.

Defences against divorce actions and court discretion

This section explores the available defences for a spouse facing a divorce action, including the possibility of reconciliation. It also delves into the court’s discretion to refuse a divorce, considering sections 3, 4, and 5 of the Divorce Act and touching upon the application of Section 5A in cases involving religious marriages.

Conclusion

In conclusion, comprehending the grounds for divorce in South Africa is essential for individuals navigating divorce proceedings and legal practitioners handling such cases. The transition from fault-based to no-fault divorce, exemplified by the Divorce Act of 1979, signifies a significant milestone in South Africa’s family law landscape. This comprehensive overview of divorce grounds offers valuable insights into the legal framework governing divorce in South Africa today, emphasising the importance of an amicable approach to dissolution.

Contact an attorney at SchoemanLaw for assistance with keeping your divorce amicable.

Written by Johan de Lange, Senior Professional Assistant – Attorney at SchoemanLaw Inc.

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(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)
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