Understanding divorce law: Grounds for Divorce (Part 1)

Whilst most people marry with the expectation of living happily ever after, somehow life has a way of coming out, and people eventually end up divorcing. Oftentimes when one considers divorce, one is also faced with the question, of the grounds upon which divorce will be granted.
One of the most frequent concerns is whether parties can be granted a decree of divorce within a year of being married or whether it is a legal requirement that a married couple should not live together as husband and wife for a period of at least one year prior to approaching the High Court for a decree of divorce.

Regardless of whether one is married in terms of the Marriages Act [Chapter 5:11] or customarily in terms of the Customary Marriages Act [Chapter 5:07], a decree of divorce dissolving a marriage can be granted only on two grounds, to wit, irretrievable breakdown of a marriage and incurable mental illness or continuous unconsciousness of one of the spouses. It follows therefore that a party seeking a decree of divorce must specifically allege and show any one of the above mentioned grounds. In the absence of any of the two grounds, there can be no cause of action for divorce and accordingly, the Court may not grant same. The said two grounds are the broad grounds, and within them there are factors or characteristics which make them up. In proving irretrievable breakdown of marriage, one needs show two characteristics namely, the marriage relationship is not
normal anymore; and there is no reasonable prospect of the restoration of a normal marriage relationship. In determining the irretrievable breakdown of the marriage, the Court is guided by certain factors as provided for by the law.

These factors however do not prejudice or restrict any other circumstances which may indicate irretrievable breakdown of the marriage, hence the High Court will deal with each case depending on its own facts. Some of the factors that the High Court considers are as follows:

1. The parties have not lived together as husband and wife for a continuous period of at least twelve months immediately before the date of commencement of the divorce action
2. the defendant has committed adultery which the plaintiff regards as incompatible with the continuation of a normal marriage relationship
3. Criminal conviction and imprisonment
4. Abusiveness and habitual intoxication.
5. The loss of love and affection that is expected of husband and wife.
6. The existence of irreconcilable differences which render the continuance of a marriage impossible.

In proving incurable mental illness or continuous unconsciousness of one of the parties to the marriage. In terms of the Matrimonial Causes Act [Chapter 5:13], a decree of divorce may be granted on the ground of mental illness or continuous unconsciousness of the other spouse. The Court before granting a decree of divorce on this ground it has to be satisfied that:-

1. the defendant is suffering from a mental disease or defect and has been under care and treatment for a continuous period of, or for interrupted periods which in the total amount to, at least five years, within the ten years immediately before the date of commencement of the divorce action; or
2. the defendant is by reason of a physical disorder in a state of continuous unconsciousness which has lasted for a period of at least six months immediately before the date of commencement of the divorce action.

In proving the existence of mental disease or physical disorder, the Court mandatorily requires the evidence of at least three medical practitioners, of whom two shall be psychiatrists appointed by the court. The party seeking a decree of divorce has to prove to the Court that there is no reasonable prospect that the Defendant will be cured or will regain consciousness. Hence, where there is a reasonable prospect of the party being cured or regaining consciousness the Court may decline the granting of a decree of divorce.

Conclusively, it being upon parties to a marriage to love one another and enjoy a successful marriage, a Court of law has no choice but to grant a decree of divorce if the presence of a ground for divorce has been objectively proved. Put differently a party cannot refuse to be divorced, if one party is no longer interested that it is the end.