Divorce and Adultery: What You Should Know

Infidelity does not always lead to divorce but when it does, there is often a misconception that the spouse that has been cheated on can take the other for ‘all they worth’ or that the infidelity can be used as grounds for divorce.

Infidelity as a Ground for Divorce?

Our courts follow a ‘no-fault’ divorce approach therefore, any party wanting to divorce on the grounds of their partner engaging in an extra-marital relationship would not succeed. Divorce is a legal process which must be recognised and granted in a court of law. A court requires certain grounds for divorce to present in order for the marriage to be legally dissolved. As stated previously, infidelity is not one of the grounds however, it may be used as evidence of an irretrievable breakdown of a marriage which will be discussed below.

Section 3 of the Divorce Act 70 of 1979 (‘Divorce Act’) provides that the primary grounds of divorce are an irretrievable breakdown of the marriage, mental illness or the continued unconsciousness of a party to the marriage.

1. Irretrievable Breakdown of the Marriage

An irretrievable breakdown of the marriage means that the relationship has deteriorated to such a point that there is no reasonable possibility of restoration. In terms of section 4(2) of the Divorce Act, the court may accept the following as evidence of an irretrievable breakdown of marriage:

  • The parties have not lived together for a continued period of at least one year before the institution of the divorce proceedings, or

  • The Defendant was declared a habitual criminal and was sentenced to imprisonment, or

  • The Defendant has committed adultery and that the Plaintiff finds irreconcilable with a continued marriage relationship.

It is important to note that even if one of the above is present, in terms of section 4(3) of the Divorce Act, the court has the discretion to postpone proceedings if the court is of the opinion that there is a reasonable possibility of the couple reconciling with the assistance of counselling, treatment or reflection. If the postponement does not lead to a reconciliation, the parties may again approach the court utilising the initial summons.

2. Mental illness

Section 5(1) of the Divorce Act provides that 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:

  • Has been admitted as a patient to an institution in terms of a reception order,

  • Has been detained as a state patient at an institution or other place specified by the Minister of Correctional Services; or

  • Is being detained as a mentally ill convicted prisoner at an institution.

3. Continuous unconsciousness

Section 5(2) of the Divorce Act provides that 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:

  • 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

  • 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.

Infidelity and Spousal Maintenance:

The general principle is that upon divorce a spouse does not automatically have a right to spousal maintenance. Without a written agreement between spouses, section 7(2) of the Divorce Act comes into effect which provides courts with discretionary power with regards to maintenance. This means that a court will use its discretion when deciding whether a spouse is to entitled maintenance after taking certain factors into account (not a closed list). The conduct of a spouse insofar as it may be relevant to the break-down of the marriage is one of the considerations.

Factors Considered by the Court:

  • Their existing or prospective means;

  • Their respective earning capacities;

  • Their financial needs and obligations;

  • The parties’ ages;

  • The duration of the marriage;

  • The standard of living of the parties prior to the divorce;

  • The parties’ conduct insofar as it may be relevant to the break-down of the marriage;

  • Any other factor, which in the court’s opinion should be taken into account.

Should a court award spousal maintenance the aforementioned factors will also be considered in determining the amount of maintenance to be awarded and the period for which the maintenance will be payable. The purpose of the inquiry is to determine what award would be ‘just.’

Divorce proceedings are usually strenuous for all parties involved but it does not have to be one that needs to be navigated alone. It is advisable to seek legal advice when considering your options to ensure that the process runs timeously and cost efficiently.

This article is for general information purposes and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Contact us for specific and detailed advice.

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