Page:Divorce Act 1979.djvu/3

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Act No. 70, 1979

Divorce Act, 1979.

(2) A court which has jurisdiction in terms of subsection (1) (b) shall also have jurisdiction in respect of a claim in reconvention or a counter-application in the divorce action concerned.

(3) A court which has jurisdiction in terms of this section in a case where the parties are not domiciled in the Republic shall determine any issue in accordance with the law which would have been applicable had the parties been domiciled in the area of jurisdiction of the court concerned on the date on which the divorce action was instituted.

(4) The provisions of this Act shall not derogate from the jurisdiction which a court has in terms of any other law or the common law.

Dissolution of marriage and grounds of divorce.

3. A marriage may be dissolved by a court by a decree of divorce and the only grounds on which such a decree may be granted are—

(a)

the irretrievable break-down of the marriage as contemplated

in section 4;

(b)

the mental illness or the continuous unconsciousness, as

contemplated in section 5, of a party to the marriage.

Irretrievable break-down of marriage as ground of divorce.

4. (1) A court may grant a decree of divorce on the ground of the irretrievable break-down of a marriage if it is satisfied that the marriage relationship between the parties to the marriage has reached such a state of disintegration that there is no reasonable prospect of the restoration of a normal marriage relationship between them.

(2) Subject to the provisions of subsection (1), and without excluding any facts or circumstances which may be indicative of the irretrievable break-down of a marriage, the court may accept evidence—

(a)

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;

(b)

that the defendant has committed adultery and that the

plaintiff finds it irreconcilable with a continued marriage relationship; or

(c)

that the defendant has in terms of a sentence of a court

been declared an habitual criminal and is undergoing imprisonment as a result of such sentence,

as proof of the irretrievable break-down of a marriage.

(3) If it appears to the court that there is a reasonable possibility that the parties may become reconciled through marriage counsel, treatment or reflection, the court may postpone the proceedings in order that the parties may attempt a reconcilation.

(4) Where a divorce action which is not defended is postponed in terms of subsection (3), the court may direct that the action be tried de novo, on the date of resumption thereof, by any other judge of the court concerned.

Mental illness or continuous unconsciousness as grounds of divorce.

5. (1) A court may grant a decree of divorce on the ground of the mental illness of the defendant if it is satisfied—

(a)

that the defendant in terms of the Mental Health Act, 1973 (Act No. 18 of 1973)—

(i)

has been admitted as a patient to an institution in

terms of a reception order;

(ii)

is being detained as a President’s patient at an

institution or other place specified by the Minister of Prisons; or

(iii)

is being detained as a mentally ill convicted

prisoner at an institution or hospital prison for psychopaths,

and that he has, for a continuous period of at least two years immediately prior to the institution of the divorce action, not been discharged unconditionally as such a patient, President’s patient or mentally ill prisoner; and