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Divorce Law/Act South Africa

Divorce law (South Africa) used to function under a “fault” system. This meant that a divorce could only be obtained if the person who wished to get divorced could prove that his/her spouse was at fault. Divorce law South Africa, however, has changed and the country now operates under a “no fault” system. This means, according to divorce law South Africa, under the 1979 Divorce Act, a married couple may dissolve their marriage under a criterion referred to as irretrievable breakdown of the marriage.

What governs irretrievable breakdown of marriage?

  • If the spouses have not lived together for a continued period of at least one year.
  • Abuse towards the spouse or children.
  • Adultery.
  • Habitual criminality.
  • Drunkenness or drug addiction.
  • Loss of love and affection between the spouses.

In light of the “no fault” system, many people wonder about the consequences when one spouse is at fault; more specifically, when a spouse commits adultery. It has been proven that most commonly, adultery or even abandonment in marriage is usually a side effect of an already broken down marriage, and is seldom the cause of the marriage to break down. In the old days, when a spouse cheated, the third party (the lover) could be sued by the innocent party, and the accused spouse could lose control over the supervision of the house and children. Divorce law South Africa no longer supports this notion. However, if it can be proven that the adultery was the cause of the breakdown of the marriage, the court could rule in favour of the innocent party.

So divorce can be obtained without either party being at fault. Further, it should be noted that a divorce can only be obtained by order of the court. as such, the court cannot stop or decline a divorce, but may in some cases delay the process to give the married couple a chance to see if they can reconcile.

Divorce law South Africa allows more leeway in divorce now than it used to in previous years. Despite the no fault system under which divorce functions now, other areas of divorce law South Africa is also more favourable. One such example is when a spouse cheats, the third party cannot be sued. This is quite a recent change in divorce law South Africa, following a popular divorce case in Pretoria in recent years. As stated, the innocent spouse could, in the past, sue the lover of his/her spouse. This changed as the court felt the spouse is also a participant in the adultery and following proven facts, adultery and abandonment is often a side effect of an already broken down marriage and very seldom the cause for a marriage to breakdown. When it can be proven that the adultery is the cause of the breakdown, then action against the spouse at fault may be considered by the court.

In the 1940’s only men who were cheated on could take legal action against the lovers of their wives as it was seen as provoking the husbands. This law slowly changed, starting in the Western Cape where woman were allowed to take action against the lovers of their husbands. In the 1950’s this law changed and women all over South Africa could take legal action against the lovers of their husbands. Divorce law South Africa has changed to make divorce result in as little disruption as possible for the spouses and children involved. Divorce can get ugly between disgruntled spouses and the law is there to settle disputes fairly and in the best interests of everyone involved.


Divorce Law Act - Divorce Law South Africa