Divorce (or the dissolution of marriage) in South African law refers to the termination of a marital union, the canceling of the legal duties and responsibilities of marriage and the dissolving of the bonds of matrimony between a married couple. Divorce is unlike annulment, which declares the marriage null and void. Divorce requires the sanction of a court in a legal process. The legal process of divorce may also involve issues of alimony (spousal support), child custody, child support, distribution of property and division of debt.
Prior to the coming into operation of the Divorce Act in South Africa on 1 July 1979, a decree of divorce could be granted by the court either on one of the two common-law grounds, adultery or malicious desertion, or on one of the two grounds introduced in 1935 by the Divorce Laws Amendment Act: incurable insanity for not less than seven years, or imprisonment of the defendant spouse for at least five years after such spouse has been declared to be a habitual criminal. Except in the case of insanity, these grounds of divorce were based on the guilt (or fault) principle: that is, on the assumption that, in every divorce action, only one of the spouses is to blame for the breakdown of the marriage, the other spouse being completely innocent. The success of the plaintiff's action was thus dependent on proof that the defendant had wilfully committed a matrimonial offence. The guilt principle also determined the patrimonial consequences of divorce in that, failing a maintenance agreement between the spouses, an order for post-divorce maintenance could be made only in favour of the innocent party against the guilty party, and the latter forfeited all patrimonial benefits of the marriage if the former applied for a forfeiture order against him or her.
Severe criticism of the shortcomings of the old divorce law led to an investigation by the South African Law Commission, whose report on the matter ultimately resulted in the enactment of the Divorce Act of 1979. The reform of the law of divorce had as its primary objective the formulation of realistic rules for the dissolution of marriages: rules which make it possible to dissolve failed marriages in a way that results in the least possible disruption for the spouses and their dependants and that best safeguards the interests of minor children. Because it was found that a divorce law based on the guilt principle could not attain this objective, the old grounds of divorce based on this principle were replaced with the ground of irretrievable breakdown of the marriage. This is now the main basis for divorce. Incurable insanity was retained as a ground for divorce, but the minimum period of mental illness was shortened considerably, while the continuous unconsciousness of one of the spouses for a minimum period of six months was added as a new ground. This shift from fault to failure was also reflected (albeit to a lesser extent) in the statutory provisions governing the patrimonial consequences of divorce.
Customary-law marriages, whether entered into before or after the commencement of the Recognition of Customary Marriages Act, can (like common-law marriages) only be dissolved by a court order. This jurisdiction vests in the High Court, a family court established under any law or a Divorce Court established in terms of section 10 of the Administration Amendment Act 1929, but which has exactly the same jurisdiction as any High Court.
Grounds Under the 1979 Divorce Act, which governs common-law marriages, a decree of divorce may be granted only on one of the following three grounds:
irretrievable breakdown of the marriage; incurable mental illness for a continuous period of at least two years; and continuous unconsciousness for a period of at least six months.
The use of the word "may" in sections 3, 4 and 5 of the Divorce Act of 1979 raises the question of whether or not the court has a discretion to refuse a decree of divorce even where all the requirements of one of the abovementioned grounds of divorce have been satisfied: for example, in cases where "divorce would result in grave financial or other hardship for one of the spouses." It has been argued by several writers that it was the intention of the legislature to vest such a residual discretion in the court. When this question was considered (obiter) by the Appellate Division in Schwartz v Schwartz, Corbett JA rejected an interpretation of section 4(1) favouring such a discretion, and this was confirmed and adopted in Levy v Levy. Neither the power of the court to postpone divorce proceedings in order that the parties may attempt a reconciliation, nor the provisions in the Act which attempt to safeguard the interests of minor or dependent children of the marriage, are indicative that a curial discretion was intended. In this regard, Van Zyl J held in Ex Parte Inkley and Inkley that the court has discretion not to refuse a divorce once the grounds for such dissolution have been proved unequivocally, but to postpone the dissolution of the marriage until certain conditions have been met, depending on the circumstances of the case.
In terms of section 8(1) of the Recognition of Customary Marriages Act, a customary marriage, entered into before or after the commencement of the Act, "may only be dissolved by a court by a decree of divorce on the ground of the irretrievable breakdown of the marriage." The court will grant a decree of divorce "if it is satisfied that the marriage relationship between the parties to the marriage has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship." This ground of divorce is the same as that of irretrievable breakdown of the marriage in terms of section 4 of the Divorce Act. Whether or not the courts will interpret the provisions of the Recognition of Customary Marriages Act on the irretrievable breakdown ground of divorce in the same way as they have interpreted this ground under the Divorce Act remains to be seen.
The Act does not make any reference to the repayment of lobola in relation to the dissolution of the marriage. It is therefore assumed that its repayment to the husband or his family is not necessary for the dissolution of the marriage. This also follows from the view that, though required for marriage, the agreement for the payment of lobola is separate from the contract of marriage itself.
Section 8(3) of the Recognition of Customary Marriages Act makes statutory mediation provisions applicable to customary marriages as well, but mediation may also be conducted in accordance with customary law.
Irretrievable breakdown of marriage The following principles apply only to the dissolution of a common-law marriage in terms of the Divorce Act. To obtain a decree of divorce on the ground of the irretrievable breakdown of the marriage, the plaintiff must satisfy the court that the marriage relationship between the parties has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between them. As was pointed out by Margo J in Naidoo v Naidoo, this test is both subjective and objective:
It is subjective in that different people may react in different ways to the same situation. The plaintiff may be irrevocably convinced that the marriage is dead, and adamant in his or her determination not to continue with it, while the defendant may "wish at all costs to preserve it." Although this is a strong indication of irretrievable marriage breakdown, unilateral demand is not as such a ground of divorce in South African law. The test for irretrievable breakdown is therefore also objective in that it is the court (and not the parties) which must be satisfied that the marriage has in fact broken down irretrievably. The court must hear evidence of facts or circumstances showing that irretrievable breakdown has occurred. Because South African law does not in theory allow divorce by consent of the spouses, the mere fact that both spouses wish the marriage to be terminated would not suffice if unsupported by other evidence.
In Schwartz v Schwartz, the Appellate Division formulated the general approach to be taken as follows:
In determining whether a marriage has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between the parties it is important to have regard to what has happened in the past, ie the history of the relationship up to the date of trial, and also to the present attitude of the parties to the marriage relationship as revealed by the evidence at the trial.
In Coetzee v Coetzee, the court found that this test had not been met. It held that the claim that the marriage has broken down irretrievably cannot succeed if no evidence is adduced of any change in the pattern of the parties' marriage which shows a difference in that pattern between the time of the institution of the action and a time in the past from which a breakdown in their marriage relationship can be inferred. A marriage which has always been a dreary or unattractive one does not break down as "a result of a mere reservatio mentalis or change of animus without an accompanying factum. There must be a discernible change in the pattern which points to a 'putting an end to such cohabitation as there was.'"
The cause of the breakdown of the marriage is immaterial. Although the Act, in section 4(2), enumerates three sets of circumstances which may be accepted by the court as proof of irretrievable breakdown, it is quite clear from the wording of this provision that the court may accept evidence of any other facts or circumstances as equally indicative of the demise of the marriage. Furthermore, despite initial misgivings that the three guidelines set out in section 4(2) could in practice be treated as the only criteria for determining whether irretrievable breakdown of a marriage had in fact taken place, it is apparent from the case law since the commencement of the Divorce Act that very little reliance has thus far been placed on these guidelines.
section 4(2) of the Act sets out the circumstances which the court may accept as proof of irretrievable breakdown:
that the parties have not lived together as husband and wife for a continuous period of at least one year immediately prior to the date of institution of the divorce action;s 4(2)(a). that the defendant has committed adultery and that the plaintiff finds it irreconcilable with a continued marriage relationship;s 4(2)(b) or that the defendant has in terms of a sentence of a court been declared a habitual criminal and is undergoing imprisonment as a result of such sentence.s 4(2)(c).
It is important to bear in mind that proof of one of these three factual situations is not necessarily conclusive evidence of marriage breakdown, although such proof "presumably establishes a prima facie case, if not a factual presumption, that the marriage is at an end."
Non-cohabitation for one year It is clear that more is required for the purposes of this guideline than mere geographical separation between the spouses; there must have been a termination of the marital consortium. Like the common-law ground of malicious desertion, non-cohabitation "as husband and wife" (or rather, as a married couple) within the meaning of section 4(2)(a) presumably includes a physical as well as a mental element: that is, the fact of separation and the intention of at least one of the spouses to terminate the marriage relationship. The reason for the cessation of cohabitation is, however, irrelevant, as is the question of which spouse is to blame in this regard.