When a marriage reaches a point where it can no longer function as a healthy partnership, South African law provides specific legal routes to end the union. The Divorce Act 70 of 1979 outlines three recognised grounds for divorce in South Africa. Understanding these grounds is crucial for anyone considering ending their marriage, as the legal system requires that specific criteria be met before a court will grant a divorce.
Understanding the legal framework
Divorce in South Africa is governed by legislation. The process must go through the court system because only a Court may legally dissolve a marriage. Furthermore, the law does not require parties to assign blame, as South African divorce law is a “no-fault” system. Instead, the main requirement is that the marriage has broken down to the extent that it cannot be repaired.
There are three primary grounds on which a court may grant a divorce: an irretrievable breakdown of the marriage, mental illness, or continuous unconsciousness. Section 3 of the Divorce Act lists these as the only grounds on which a decree of divorce may be granted and, since an amendment by Act 1 of 2024 took effect on 14 May 2024, expressly applies them to Muslim marriages as well. Each ground has its own legal and evidentiary requirements.
Irretrievable breakdown of the marriage
This is the most commonly cited reason for divorce in South Africa. Section 4(1) of the Divorce Act describes an irretrievable breakdown as a situation in which the marriage relationship has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between the parties.
Whilst there is no exhaustive list of reasons for a breakdown of a marriage, we describe some of the more common reasons below.
Separation and lack of cohabitation
One of the most common indicators of an irretrievable breakdown of a marriage relationship is the prolonged separation of the parties. If spouses have lived apart for at least one year without reconciliation, or if spouses are residing in the same household but not engaging in a relationship similar to that expected of a married couple (i.e. living in separate rooms), this may be used as evidence to show that the marriage has failed. Section 4(2)(a) of the Divorce Act specifically allows a court to accept evidence that the parties have not lived together as husband and wife for a continuous period of at least one year immediately before the divorce action was instituted.
Whilst this is one of the main indications of an irretrievably broken down marriage, separation is not an absolute requirement and a court will, in certain instances, accept shorter periods of separation, coupled with other indicators.
Adultery and infidelity
Whilst adultery or infidelity is not cited in divorce proceedings to apportion blame (because our divorce law is no-fault based), it remains strong evidence of the breakdown of a marriage. Adultery is not a separate ground for divorce. Under section 4(2)(b) of the Divorce Act, if one spouse has committed adultery and the other finds it irreconcilable with a continued marriage relationship, the court may accept this as proof that the marriage has irretrievably broken down.
Abuse, cruelty, and domestic neglect
Physical or emotional abuse, cruelty, or a pattern of neglect can also be presented as evidence that the marriage has broken down beyond repair. This includes verbal abuse, financial abandonment, and emotional manipulation.
Addiction and criminal behaviour
Substance abuse and habitual criminal activity may be cited as contributing factors. If one spouse becomes addicted to drugs or alcohol and refuses treatment, or engages in persistent criminal behaviour, it may render continuation of the marriage relationship intolerable. Where a spouse has been declared a habitual criminal by a court and is serving imprisonment under that sentence, section 4(2)(c) of the Divorce Act allows the court to accept this as proof of the irretrievable breakdown of the marriage. It is evidence supporting the ground of irretrievable breakdown, not a separate ground for divorce.
Lack of Communication and Mutual Support
Communication breakdown is often the underlying cause of most divorces. If the couple no longer communicates meaningfully, shares goals, or offers each other emotional or practical support, the relationship may be deemed beyond reconciliation.
Mental illness as grounds for divorce
The Divorce Act also recognises mental illness as a ground for divorce when certain conditions are met. The court must be satisfied that the mental illness is severe, long-term, and unlikely to improve.
Institutionalisation and duration of illness
Under section 5(1) of the Divorce Act, the spouse against whom the divorce is sought must have been admitted or detained as a mental health patient, State patient or mentally ill prisoner, and must not have been unconditionally discharged for a continuous period of at least two years immediately before the divorce action was instituted. The period of institutionalisation is not enough on its own; the medical evidence described below is also required.
Proof from medical professionals
The court must hear the evidence of at least two psychiatrists, one of whom must be appointed by the court. Both must satisfy the court that the spouse is mentally ill and that there is no reasonable prospect that he or she will be cured of the mental illness.
Continuous unconsciousness as grounds for divorce
Though rare, continued unconsciousness is also a valid reason to terminate a marriage under South African law. Under section 5(2) of the Divorce Act, this ground applies when one partner is, by reason of a physical disorder, in a state of continuous unconsciousness that has lasted for at least six months immediately before the divorce action was instituted, and there is no reasonable prospect of that partner regaining consciousness.
Medical certification
The Plaintiff must provide expert medical evidence confirming the nature of the unconsciousness, its duration, and the prognosis. The court must hear the evidence of at least two medical practitioners, one of whom must be a neurologist or neurosurgeon appointed by the court, that there is no reasonable prospect of the spouse regaining consciousness.
Types of Divorce Procedures in South Africa
The type of divorce procedure depends on whether the parties agree on the terms. This affects how long the divorce takes and how much it costs.
Unopposed/uncontested divorce
An unopposed (commonly known as uncontested) divorce occurs when both spouses agree to dissolve the marriage and have settled all related matters, including but not limited to parental responsibilities and rights in regard to children, property division, and spousal maintenance. These cases are usually finalised relatively quickly and are usually finalised within a few months, and are significantly more cost-effective.
Opposed/contested divorce
A contested divorce arises when spouses disagree on one or more issues. These cases can take months or even years to finalise, depending on the complexity of the matter. Contested divorces often require multiple court appearances, legal representation, and expert testimony, making them more expensive.
What the court considers during divorce proceedings
Although the grounds for divorce are strictly defined, the court also evaluates various surrounding circumstances before granting a divorce decree.
Children and parental responsibilities
If minor or dependent children are involved, section 6(1) of the Divorce Act provides that a divorce may not be granted until the court is satisfied that the arrangements made or contemplated for the children’s welfare are satisfactory or are the best that can be effected in the circumstances. The child’s best interests are always of paramount importance. The Office of the Family Advocate is often involved in assessing proposed parenting arrangements and making recommendations and, where the Family Advocate has instituted an enquiry, the court must consider its report and recommendations before granting the divorce. For more detail on what these arrangements typically involve, see our guide on parenting plans in South Africa.
Division of property
South Africa recognises three matrimonial property systems: in community of property, out of community of property with accrual, and out of community of property without accrual. How the property is divided will depend, amongst others, on which marital regime the couple chose at the time of marriage. For a detailed overview of these regimes, refer to our articles on marriage in community of property and the Matrimonial Property Act.
Spousal Maintenance
Spousal maintenance is not an automatic right. The court decides whether one spouse should pay maintenance to the other, and if so, how much and for how long. The court considers factors such as financial need, earning capacity, standard of living, and the length of the marriage.
Upcoming legislative changes: the General (Family) Laws Amendment Bill
The General (Family) Laws Amendment Bill [B20-2025], introduced in Parliament on 13 August 2025, proposes amendments to the Divorce Act, the Matrimonial Property Act and the Mediation in Certain Divorce Matters Act. The Bill responds to the Constitutional Court’s judgment in EB (born S) v ER (born B) and Others; KG v Minister of Home Affairs and Others [2023] ZACC 32 (10 October 2023). In that judgment, the Court found it unconstitutional that a divorce court’s power to order a redistribution of assets under section 7(3) of the Divorce Act was limited to marriages out of community of property without accrual concluded before the Matrimonial Property Act came into force on 1 November 1984. As an interim measure pending legislation, the Court extended that power to such marriages regardless of when they were concluded. The Bill would write this into the Divorce Act, aiming to ensure fairer outcomes for vulnerable spouses who contributed to a marriage but would otherwise have no claim to the other spouse’s assets, and would also provide for the distribution of matrimonial property when such a marriage ends by death. As at October 2026, the Bill is still before Parliament and has not been passed into law. The three grounds for divorce themselves are not affected by the Bill.
The role of mediation and legal support
Although the court ultimately grants the divorce, mediation is encouraged as a way to resolve disputes amicably, especially where children are involved. Mediation can reduce legal costs and avoid drawn-out court battles. Seeking legal advice early in the process ensures that your rights are protected and the divorce process runs as smoothly as possible. To understand how the broader divorce process works from start to finish, see our guide on the divorce process in South Africa.
Final Thoughts on Divorce in South Africa
Divorce is never a simple decision, but South African law provides a clear framework for those who need to dissolve their marriage legally and fairly. Whether due to a fundamental breakdown in the relationship, long-term mental illness, or continuous unconsciousness, the courts are equipped to handle each case with the seriousness it deserves. Understanding your rights and the legal grounds for divorce in South Africa is the first step toward making informed choices about your future.
Updated/Reviewed 24 March 2026 — Added note on the General (Family) Laws Amendment Bill (B20-2025) and its potential impact on property division. Fixed minor typographical issues. Confirmed the three grounds for divorce remain unchanged. Added internal links to related family law articles.
Updated 6 October 2026 – Corrected the statement that habitual criminality is a separate ground for divorce (under section 4(2)(c) of the Divorce Act it is evidence of irretrievable breakdown), and corrected the medical evidence required under section 5 and the protection of children under section 6. Updated the note on the General (Family) Laws Amendment Bill [B20-2025] to explain the Constitutional Court’s ruling in EB v ER; KG v Minister of Home Affairs [2023] ZACC 32, confirm that the Bill is still before Parliament as at October 2026, and note that the grounds for divorce have expressly applied to Muslim marriages since 14 May 2024.
