Marriage is a legal bond between two people, and provides those people with certain rights and obligations against each other. The only way to terminate these rights and obligations (as much as possible), is for the parties to obtain a divorce from each other. A divorce therefore legally terminates a marriage. Once a divorce is granted, each partner may then legally marry someone else.
There are only two grounds for divorce:
- the 'irretrievable breakdown' of the marriage;
- the mental illness or continuous unconsciousness of one partner
If a married couple can no longer live together as man and wife (or as wife&wife or husband&husband) then it is open for that couple to obtain a divorce based on the grounds of irretrievable breakdown.? Both partners, or one of the partners, must allege to the court that the marriage has broken down to such an extent and so badly that there is no reasonable chance of saving the marriage.
Examples of the kind of evidence the court will accept as proof of irretrievable breakdown:
- The couple has not lived together like husband and wife for a period of time.
- One partner had sexual intercourse with somebody else and because of this the other partner finds it impossible to continue living together as husband and wife.
- One partner is in prison after being declared an 'habitual criminal'.
- One partner deserted the other.
- One partner abused the other, for example the husband keeps assaulting the wife.
- One partner is an alcoholic or a drug addict.
- The partners no longer love each other - they may be too different, or they married when they were too young.
- One of the partners finds it impossible to live together as husband and wife for any other reason.
While it used to be a requirement in South African law that the parties needed to prove the breakdown in court, this is no longer the case. It is now enough for the parties to appear in court and explain to the court that the marriage has broken down to such an extent that it cannot be saved. This is the 'usual' way of getting divorced in South Africa. The process can take between 3 days and a number of years depending on the parties, and the issues between them which need to be decided by the court.
Mental illness or unconsciousness
A person wanting a divorce based on the grounds of either mental illness or unconsciousness must show the court that the other spouse was admitted to or detained in a mental institution, that he/she has been in the institution for at least two years and that the doctors do not think he or she can be cured.
A person can also get a divorce if the other spouse is permanently unconscious. The spouse must have been unconscious for at least 6 months, and the doctor must see no hope of recovery. There are a number of issues that need to be addressed in a divorce, including:Custody of the children; Maintenance for the children and/or the spouse; Access to the children;
The division of the estate which will be different based on the marriage regime:
- In community of property
- Out of community of property (by way of ANC)
- Out of community of property with the accrual (also by way of ANC)