The rights of mentally ill or incompetent spouses relating to civil marriages and divorce in South Africa

Abstract

Mental illness is defined in the Mental Health Care Act (hereinafter referred to as MHCA)1 as a confirmed diagnosis of a mental health-related condition made by a mental health care practitioner, who is authorised to make such a diagnosis based on approved diagnostic criteria.2 The requirements to enter into a valid marriage entails that the parties must have the capacity to enter into the marriage, each party must consent to the marriage, and the prescribed formalities, as per the Marriage Act (hereinafter referred to as the MA)3 and Civil Union Act (hereinafter referred to as the CUA)4 must be followed.5 Before the implementation of the Divorce Act (hereinafter referred to as DA)6 mentally ill spouses could at common law only be divorced based on the ground of fault, which included adultery or desertion, and the Divorce Laws Amendment Act (hereinafter referred to as DLAA)7 introduced a new ground which catered for mental illness based on incurable insanity or imprisonment of a spouse.8 The DA9 brought about different reforms for divorce, based on a no-fault criterion, and provides that a divorce decree can be based on the ground of irretrievable marriage breakdown,10 contained in section 4.11 There is a second ground for divorce, based on mental illness, which entails that a spouse must have been mentally ill for a period of at least two years, 12 or the continued unconsciousness ground, which states that a spouse must have been unconscious for at least six months, 13 contained in section 5 of the DA.14