In your next clause, you have to give your reason for seeking a divorce.
There are three grounds on which a court may grant a decree of divorce:
- Continuous unconsciousness of the defendant
- Mental illness of the defendant
- Irretrievable breakdown of the marriage
We will briefly deal with each of these grounds:
In order for the court to grant a decree of divorce on the ground of mental illness you must prove to the court that:
- The Defendant has been admitted as a mental patient to an institution or is being detained as a State patient at an institution or is being detained as a mentally ill convicted prisoner at an institution
- 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, State patient or mentally ill prisoner
- The Court must hear the evidence of at least two psychiatrists, one of whom must have been appointed by the Court. The evidence should be with regard to the mental illness of the Defendant whether the Defendant is mentally ill and whether there is a reasonable prospect that he will be cured of his mental illness
In order for the Court to grant a decree of divorce on the ground of mental illness you must prove to the Court 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
- The Court must hear the evidence of at least two medical practitioners – one of whom must be a neurologist or a neurosurgeon appointed by the Court – with regard to the reasonable prospect whether the Defendant will regain consciousness
The first two grounds for divorce rarely occur and we will therefore focus our attention on the third ground namely irretrievable breakdown of the marriage.
A court may grant a decree of divorce on the ground of the irretrievable breakdown 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 marital relationship between them.
After stating that the marriage has irretrievably broken down, you may aver any facts to prove to the Court that there has been an irretrievable breakdown of the marriage. The following are common examples for illustrative purposes, but you should state the reasons for the breakdown in your specific marriage, whatever they may be, rather than copy these examples.
- 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
- The Defendant has committed adultery and the Plaintiff finds it irreconcilable with a continued marital relationship
- The Defendant has in terms of a sentence of Court been declared a habitual criminal and is undergoing imprisonment as a result of such sentence
In addition to the above you may also prove any other possible reasons for the irretrievable breakdown of the marriage such as emotional, verbal, sexual or physical abuse of yourself or of your children, alcohol or drug abuse, a lack of communication between the parties or the fact that you no longer love the Defendant.
If you asks for an order of forfeiture of benefits against the Defendant, the grounds on which such forfeiture is claimed must be included with the reasons for the irretrievable breakdown of the marriage.
You must remember that you will be expected to give oral evidence in Court regarding the reasons for the breakdown which you have alleged.
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 Court may postpone the proceedings in order that the parties may attempt to reconcile.
The paragraph in the particulars of claim dealing with the reasons for the irretrievable breakdown of the marriage may look something like this:
“The marriage relationship between the parties has irretrievably broken down to such an extent that no reasonable prospects exist for the restoration of a normal marriage relationship between the parties in that:
- The Defendant is involved in an extra-marital relationship with another woman who the Plaintiff only knows as “Candy”
- The Defendant physically and emotionally abuses the Plaintiff
- The parties have lost all love and respect for each other
- The parties have not been living together as husband and wife since December 2012;
- Due to the above the Plaintiff, despite careful consideration, is no longer interested in continuing with the marriage relationship