When a marriage has reached a point of no return, South African law provides clear mechanisms for legally ending the union. The Divorce Act 70 of 1979 sets out the grounds for divorce in South Africa, and the court system plays a central role in ensuring the process is lawful, fair, and consistent.

Unlike older systems that placed emphasis on blame, South Africa follows a no-fault divorce system. This means that a court will not concern itself with who is “responsible” for the collapse of the marriage, but instead whether specific legal grounds exist to dissolve it.

The Legal Framework for Divorce

Only a court can dissolve a marriage in South Africa. To succeed, a party must prove that one of the following statutory grounds exists:

1. Irretrievable breakdown of the marriage
2. Mental illness
3. Continuous unconsciousness

Each ground has distinct criteria that must be met, supported by evidence, before a court will grant a decree of divorce.

Ground 1: Irretrievable Breakdown of the Marriage

This is the most common reason for divorce in South Africa. A marriage is deemed irretrievably broken when it is clear there is no reasonable prospect of reconciliation.

Some of the most frequently cited indicators include:

• Extended separation: Couples who live apart for 12 months or longer may demonstrate to the court that the relationship has effectively ended.
• Adultery or infidelity: While blame is irrelevant under no-fault divorce, adultery often proves that continuing the relationship is impossible.
• Abuse and neglect: Patterns of emotional cruelty, physical violence, financial abandonment, or manipulation may show that the marriage has collapsed.
• Substance abuse and crime: Persistent drug or alcohol addiction, or ongoing criminal behaviour (especially when it leads to imprisonment), can render cohabitation intolerable.
• Loss of communication and support: If spouses no longer share goals, provide emotional support, or communicate meaningfully, the court may find that the marriage cannot be saved.

Ground 2: Mental Illness

A marriage may also be dissolved where a spouse suffers from severe, long-term mental illness. The Divorce Act requires proof that:

• The ill spouse has been institutionalised for at least two consecutive years prior to the divorce application.
• Two independent psychiatrists or medical experts confirm that the illness is serious and that there is no reasonable chance of recovery.

Ground 3: Continuous Unconsciousness

Although rare, South African law recognises ongoing unconsciousness as a valid reason for divorce. This applies where:

• A spouse has been in a continuous state of unconsciousness for at least six months.
• Two medical practitioners confirm that recovery is not expected.

This provision acknowledges the reality of long-term medical conditions while giving the conscious spouse a legal pathway forward.

This safeguard ensures that divorces based on mental illness are not granted lightly.

Divorce Procedures in South Africa

The type of divorce process depends on whether spouses can reach agreement:

Uncontested Divorce

When both parties agree on all key issues, such as child custody, maintenance, and property division, the process is faster, cheaper, and less stressful. Uncontested divorces can often be finalised within a few months.

Contested Divorce

If spouses disagree on one or more aspects, the divorce becomes contested. These matters often take much longer, sometimes years, and involve multiple court hearings, legal representation, and expert testimony. Contested divorces are more costly and emotionally draining.

Key Issues the Court Considers

Even once a ground for divorce has been proven, the court will consider several practical matters before granting the order:

• Children’s best interests: Parenting plans, custody arrangements, and support obligations must prioritise the welfare of minor children. The Family Advocate often plays a role in reviewing and approving these plans.
• Division of property: Outcomes depend on the marital property regime (in community of property, out of community with accrual, or out of community without accrual).
• Spousal maintenance: Courts may order one spouse to provide financial support, depending on the length of the marriage, earning potential, lifestyle, and demonstrated need.

Mediation and Legal Support

While only a court can grant divorce, couples are encouraged to use mediation to resolve disputes before litigation. Mediation reduces costs, preserves relationships where children are involved, and avoids lengthy legal battles.

Obtaining professional legal advice early ensures that rights are protected, agreements are properly documented, and the divorce process runs as smoothly as possible.

Conclusion: Making Informed Decisions

Divorce is never an easy step, but South African law provides a structured and fair process for ending marriages that cannot be repaired. Whether the reason is a fundamental breakdown, mental illness, or continuous unconsciousness, the courts handle each matter with sensitivity and legal precision.

For anyone considering divorce in South Africa, understanding the grounds for divorce, the procedures involved, and the implications for children, property, and finances is the first step toward making informed and empowered decisions about the future.