In Section 4 (2) (Act 70/79) three circumstances are set out which the Court may accept as evidence of an irretrievable breakdown of the marriage:

That the parties have not lived together as husband and wife for a continuous period of at least one year immediately prior to the date of the institution of the divorce action. This does not necessarily mean that the man and wife have to live in separate buildings but you must keep in mind that the Courts are in general not willing to (even on an undisputed basis), hear the case if the parties are still living in the same house on the date of the application. There must be a reasonable explanation, but even then some judges will still not grant a decree of divorce.

That the Defendant has committed adultery and that the Plaintiff finds it irreconcilable with a continued marriage relationship if the Plaintiff is a party to an adulterous relationship it is not fatal for a final divorce order and it may be proof of a real breakdown of the marriage. It is correct to disclose the adulterous relationship to the Court.

• That the Defendant has in terms of a sentence of the Court been declared a habitual criminal and is undergoing imprisonment as a result of such sentence.

• See Levy v Levy 1991 (1) SA 614 A where the Appeal Court had decided that a court had no discretion to deny a divorce where the irretrievable breakdown of the marriage has been proved.

Note Section 4(3) (Act 70/79): where the Court still has a discretion not to grant a divorce order but postpone the proceedings sine die or even dismiss the claim if it appears to the Court that there is a reasonable possibility that the parties may become reconciled through marriage counselling, treatment or reflection. The Summons also usually contains the averment that further marriage counselling and/or treatment will not lead to any reconciliation. This evidence must also be tendered to the Court even on an unopposed basis. It is therefore very important to properly consult with your client and make sure that he or she understands that the Court must be satisfied that the marriage has really irretrievably broken down and that there is no possibility of the continuation of a normal marriage before a final divorce order will be granted.

If a matter was postponed, it may be enrolled again later and any other judge may proceed with the case. (Section 4(4)(Act 70/79)). Section 5 (Act 70/79) sets out the circumstances under which the Court will grant a divorce order because of mental illness or continuous unconsciousness:

• In the case of mental illness the Defendant must have been admitted, in terms of the Mental Health Act, 1973 (Act No 18 of 1973), as a patient to an institution in terms of a reception order, for a period of at least two years and in any case two psychiatrists (one appointed by the Court) must satisfy the Court that there is no reasonable prospect that he will be cured of his mental illness.

• In the case of unconsciousness, the Court will only grant the order if the Defendant was unconscious for a continuous period of at least six months immediately prior to the institution of the action and also after hearing the evidence of two medical practitioners of whom one shall be a neurologist or a neurosurgeon appointed by the Court who must declare that there is no reasonable prospect that the Defendant will regain consciousness.

• In an action with Section 5 as causa a curator ad litem must be appointed to protect the interests of the Defendant (patient) and to assist the Court.

Keep in mind that where the parties live together again after the issue of Summons, it does not necessarily end the causa or the action. If the attempted reconciliation is seemingly unsuccessful after a few months, they can proceed on the same Summons. It is thus now confirmed that the marriage has really broken down irretrievably even after the parties have tried a final time to become reconciled. The notice of set down should be served on the defendant.

A customary marriage may be dissolved only on account of an irretrievable breakdown in the marriage and only if the High, Family or Regional Court is satisfied that the marriage relationship between the parties has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between them.

The SA Law Reform Commission is currently considering the review of certain aspects of the law of divorce.