Global InformationDivorce in South Africa information
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.