The relevance of the COVID-19 Pandemic with adultery was removed as grounds for divorce

 In Articles, Divorce, Child and Family Law

Dating back nearly 50 years, since adultery was removed as grounds for divorce in the Divorce Act, we look at where that leaves an innocent spouse in 2021. Where previously it was acceptable to claim alienation of affection or enticement or adultery, there remain only two options; one being the inevitable breakdown of a marriage, and the other mental illness or a continuous unconscious state.
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What is significant about these terms during COVID-19, extended lockdown and restrictions on travel, is that these can contribute to irretrievable breakdown if the couple has not lived together for a year or more.

Citing irreconcilable differences is the workaround on adultery, and with the increasing rate of mental stress being recorded, having a partner who has been admitted to a facility in terms of the reception order, claims for divorce on these particular grounds may have increased significantly since adultery was removed as ground of divorce

Grounds for divorce in South Africa
There are only two grounds that the court considers when granting a divorce, they are

  1. Irretrievable breakdown of the marriage,
  2. Mental illness, or the continuous unconsciousness

Irretrievable breakdown
The court may accept the following as indication of irretrievable breakdown of the marriage:

  1. The parties have not lived together for a continued period of at least one year before the institution of the divorce proceedings, or
  2. The Defendant was declared a habitual criminal and was sentenced to imprisonment, or
  3. The defendant has committed adultery and that the plaintiff finds irreconcilable to continue with the marriage

Mental illness
The court may grant a decree of divorce on the grounds of the mental illness of the defendant if the court is satisfied that the defendant:

  1. Has been admitted as a patient to an institution in terms of the reception order,
  2. He/she/they have been detained as a state patient at an institution or other place specified by the Minister of Correctional Services; or
  3. He/she/they are being detained as a mentally ill convicted prisoner at an institution.

Continuous unconsciousness

A court may grant a decree of divorce on the grounds that the defendant is, by reason of a physical disorder, in a state of continuous unconsciousness, if it is satisfied that:

  1. The defendant’s unconsciousness has lasted for a continuous period of at least six months immediately prior to the institution of the divorce action; and
  2. After having heard evidence from at least two medical practitioners, one of whom must be a neurologist or a neurosurgeon appointed by the court, there is no reasonable prospect that the defendant will regain consciousness
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