Divorce is governed by the Divorce Act 70 of 1979
There are only two grounds for divorce:
irretrievable breakdown and mental illness or continuous unconsciousness.
The court may grant a divorce on the ground of irretrievable breakdown. The cause of breakdown is immaterial but legislative guidelines have been laid down to assist the court in determining a prima facie case for divorce.
The circumstances which the court may accept in proof of irretrievable breakdown are:
- that the parties have not lived together as husband and wife for a continuous period of at least one year;
- that the defendant has committed adultery or that the plaintiff finds it irreconcilable with a continuous marriage relationship; or
- the defendant has in terms of a sentence of a court been declared an habitual criminal and is undergoing impeachment as a result of such sentence.
These are not the only proof of marriage breakdown. Thus, for example, the court may find that refusal of marital privileges, mental and physical cruelty, incompatibility, the plaintiff's own adultery or even unilateral repudiation, constitutes sufficient evidence of breakdown.
Mental illness or continuous unconsciousness
Section 5 of the divorce Act empowers the court to grant a divorce on the ground of mental illness or continuous unconsciousness. The cause of action runs on the ground of "supervening inaccessibility of recovery".
- The defendant has been admitted to an institution as a mental patient in term of an inception order under the Mental Health Act and is being detained as a President's patient, or a mentally ill convicted prisoner in an institution or prison hospital, and
- He has been unconditionally discharged from the respective institution or place of detention for a continuous period of at least two years prior to the institution of the divorce action, and
- On the evidence of at least two psychiatrists appointed by the court, the defendant is mentally ill or there is no reasonable prospect of his recovery.
The defendant is unconscious by reason of a physical disorder and the defendant's unconsciousness has lasted for a continuous period of at least 6 months.
Consequences of divorce
Divorce results in change of status for the former spouses. They are free to marry again.
If they cannot agree on a settlement then the division of their assets will be affected by at least the
- the marital property regime under which they are married;
- whether they are married before or after the 1 November 1984;
- whether a forfeiture order has been granted.
Marriage concluded after the 15 November 1984 under a standard form ANC in terms of which community is excluded, the difference between the gains or accruals in the respective estates of the spouses will be shared equally, after taking into account the Consumer Price Index will be shared equally.
A redistribution in an order when one spouse is ordered to transfer certain assets, or part thereof, to the other is designed to remedy the inequality which could flow from the failure of the law to recognise a right of a spouse upon divorce to claim an adjustment of a disparity between the respective assets of the spouses which is commensurate with the respective contributions during the subsistence of the marriage to the maintenance or increase in the estate of the one or the other. They can now share in premium interests as well.
Before a court can grant an order it must be satisfied that at least the following requirements have been met:
- The parties must have been married prior to 1984 out of community of property in terms of an ante nuptial contract which excluded the community of property, community of profit and loss and the accrual sharing in any form.
- Parties however must have been able to reach a settlement.
- The order must be applied for.
- The order can only be granted against a party against whom the order is sought has more assets than liabilities.
- The party in whose favour the order is granted must have contributed directly or indirectly to the maintenance or increase of the estate of the other during the subsistence of the marriage.
- The court must be satisfied it is just and equitable.
In determining what assets, or part thereof, are to be transferred in terms of the redistribution order the court shall, apart from the requirements referred to in 5 and 6 above, take into account the following factors:
- the existing means and obligations of the parties;
- any donation made by one party to the other during the subsistence of the marriage, or which is still owing in terms of an ante nuptial contract;
- any order for the forfeiture of benefits;
- any other factor which in the opinion of the court should be taken into account.
Forfeiture of benefits
In terms of Section 9 of the Divorce Act, the court has the discretion, when granting a divorce on the ground of the irretrievable breakdown of the marriage, to order that the patrimonial benefits of the marriage be forfeited by one party in favour of the other. The court may order forfeiture only if it is satisfied that the one party will, in relation to the other, be unduly benefited.
If the parties were married after 1 November 1984 out of community of property and the accrual system applied, then the right to share in the accrual of the estate of a spouse would be a patrimonial benefit that could on divorce be declared forfeit either wholly or in part.
In exercising discretion to order forfeiture, the court is enjoined to take into account:
- the duration of the marriage;
- the circumstances that gave rise to the breakdown of the marriage; and
- any substantial misconduct on the part of either of the parties and the fact that an undue benefit may accrue to the one party in relation to the other if an order of forfeiture is not granted.
A party claiming forfeiture must plead the necessary facts to support that claim and formulate a proper prayer in the pleadings to define the nature of the relief sought.
The forfeiture order must be sought at the time of divorce.
Dissolution of Marriage on Presumption of Death
The Dissolution of Marriages on Presumption of Death Act empowers any provincial or local division of the Supreme Court which grants an order presuming death, also to order that the marriage of the missing person be dissolved.