Divorce is usually not an easy experience to go through, mainly due to the circumstances which bring it about as well as the culminating effects. Spouses decide to divorce owing to the various factors that cause the continuation of the marriage relationship difficult, untenable or impossible. These may be due to infidelity, loss of affection, imprisonment, unconsciousness of a spouse, forms of abuse, disagreements over career development, children or finances. Any of the aforementioned reasons may cause a marriage to break down irretrievably, thereby resulting in spouses electing to dissolve the marriage.

The consequences of divorce are far reaching, as determinations will have to be made with regard to either the division of the matrimonial property estate, maintenance (spousal or child support), custody of minor children or parental rights.

We have assisted in divorces whereby spouses, out of frustration, engage in conduct aimed at putting the other spouse at a disadvantage (patrimonial or otherwise) so as to walk away with a sense of victory and consolation. More often than not, this causes our work as legal practitioners to go beyond the ordinary mandate, we end up sharing insights with the divorcing parties on how their conduct will potentially bite deep into their pockets, sometimes unnecessarily.

South African law recognises three grounds for divorce, as provided for in the Divorce Act 70 of 1979 (Divorce Act). These grounds are;

(i) Irretrievable breakdown of marriage;

(ii) Incurable mental illness or continuous unconsciousness; and

(iii) Declaration of habitual criminality.

If any of the above grounds is proven and the court is satisfied that there are no prospects of the restoration of a normal marriage relationship, the Court will usually grant a divorce decree.

Questions arose with regard to the use of the word ‘may’ in the legislative provisions above (Sections 3, 4 and 5 of the Divorce Act). It was questioned whether the use of that word means the court has discretion to refuse to grant a divorce decree even where any of the grounds above have been proven. This was answered in the case of Schwartz v Schwartz 1984 (4) SA 467(A), where it was held that the court has no discretion to refuse granting a divorce in an instance where it has been proven that the marriage has broken down irretrievably, differing with the view in Smit v Smit 1982 (4) SA 34 (O). This position was also confirmed in the case of Levy v Levy 1991 (3) SA614 (A) 625E-G. The general approach is that the Court exercises limited discretion in divorce matters, that it must not be trigger-happy to grant divorce wherein it is not satisfied that prospects of restoration of the marriage relationship are not present.

The other side of the coin is whereby, one of the spouses refuses to divorce. Is there anything that the other spouse can do?

The law cannot expect a spouse who no longer wishes to stay in a marriage, to continue to do so against their will. In most cases where the other spouse is not in favour of divorcing, he/she does not cooperate in the process, thereby causing delays and frustrations to the other spouse. Two scenarios ought to be clarified forthwith.

• Whereby the defendant declines to participate in the court proceedings but nevertheless agrees with the plaintiff about the terms under which the marriage should be dissolved (e.g matrimonial property, maintenance, parental rights, custody and access rights etc), the parties may enter into a settlement agreement and the matter will proceed as uncontested. This scenario is usually unproblematic.

• Where the defendant declines to enter into a settlement agreement with the plaintiff, there and then the matter will proceed as contested, and in the event that the defendant fails, refuses or neglects to file their notice to defend, despite proper service, default judgment may be issued by the court if it is found to be in the interests of justice. As alluded to above, the law will not compel the plaintiff to stay in a marriage whereby he/she is no longer willing to stay.

Ultimately, it is strongly advised that parties seek the assistance of family law legal practitioners to assist in the divorce process. Sometimes spouses decline to participate in settlement negotiations owing to the reasons and frustrations that culminated in the marriage breaking down. Legal practitioners will therefore assist by facilitating a settlement process in an approach that is as objective as possible.

We assist in a wide range of legal services including family law, and we are available to consult with parties in order to receive their full instructions in this respect. Contact us for comprehensive assistance.

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