Written by: Andrea Hiestermann

28 January 2025

Divorce is a life-altering decision, and in South Africa, the courts generally grant divorce applications. However, certain legal and procedural factors can delay or complicate the process, such as cases that are not finalised on the hearing date due to a lack of readiness or instances where the marriage is deemed invalid. While divorce is often seen as a straightforward legal matter, can a judge or magistrate refuse to grant a divorce if they believe the marriage can be salvaged?

This article explores when and why a court may delay a divorce based on the grounds of an irretrievable breakdown of the marriage and what happens if one spouse wants to proceed while the other objects.

On What Grounds Can You Get Divorced In South Africa?

The Divorce Act 70 of 1979 provides for spouses to divorce on the following grounds:

  • Irretrievable breakdown of the marriage
  • Adultery
  • Desertion
  • Mental illness
  • Continuous unconsciousness

What Is An Irretrievable Breakdown Of A Marriage?

This term indicates that the marriage has broken down beyond repair. When citing this ground for divorce, additional information should be provided for the judge or magistrate to consider, such as:

  • The parties have lost all love and affection for each other;
  • The parties have no interest in the continuation of the marriage;
  • The parties have not lived as husband and wife for an extended amount of time; and
  • The parties live separate and independent lives and do not share any common interests.

Can The Judge Or Magistrate Determine That The Marriage Has Not Irretrievably Broken Down?

The answer is yes. A divorce is a change in marital status and is a significant matter. As a result, a judge or magistrate may choose not to grant the divorce immediately and might instead delay the process by referring the couple to therapy or any other appropriate recourse the court deems fit. Reasons for a judge or magistrate possibly denying a divorce include:

  • The court believes the couple has not been separated long enough.
  • There is insufficient evidence that the marriage has irretrievably broken down.
  • The judge or magistrate believes reconciliation is possible.
  • The couple has not completed the necessary legal or procedural steps.

In such cases, the court may refer the spouses to counselling or mediation before finalising the divorce. However, the court cannot force a couple to remain married indefinitely. Even though the court may not outright deny a divorce, the court may choose to delay divorce proceedings, allowing the parties time to demonstrate that the marriage cannot be restored.

What Happens If One Spouse Wants A Divorce But The Other Does Not?

If one spouse objects to a divorce, the court will assess the situation based on the facts rather than personal beliefs about marriage.

In this situation, the court cannot deny a divorce simply because one spouse is opposed to it. The court will examine the reasons behind the desire for divorce and evaluate the evidence presented to determine whether the marriage has truly broken down before making a final ruling. For example, if one spouse is very unhappy in the marriage while the other does not believe in divorce, the court is likely to grant the divorce. Ultimately, individuals cannot be forced to remain in a marriage by a court if they truly do not want to be there.

Divorce can be an emotionally challenging and legally complex process, especially when there are delays or disputes between spouses. While South African law ensures that individuals cannot be forced to stay in a marriage, the court may require additional steps before finalising a divorce.

If you are considering divorce, contact Burger Huyser Attorneys today to schedule a consultation with one of our experienced family law specialists. Our legal experts will guide you through the process, ensuring that your rights are protected and that your divorce proceeds as smoothly as possible. Call us today for expert legal advice and assistance.

Contact Burger Huyser Attorneys, and book a consultation.

To speak to one of our experienced attorneys in South Africa for immediate assistance, contact us on the numbers below:

Randburg call 061 516 6878; Roodepoort call 061 516 0091; Sandton call 064 555 3358;  Pretoria call 064 548 4838;

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