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Section 5 of the Divorce Act
5.   Mental illness or continuous unconsciousness as grounds of divorce.—(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 State patient at an institution or other place specified by the Minister of Correctional Services; or
[Sub-para. (ii) amended by s. 4 of Act No. 18 of 1996.]
Wording of Sections
(iii)
is being detained as a mentally ill convicted prisoner at an institution,
[Sub-para. (iii) amended by s. 4 of Act No. 18 of 1996.]
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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, State patient or mentally ill prisoner; and
(b)
after having heard the evidence of at least two psychiatrists, of whom one shall have been appointed by the court, that the defendant is mentally ill and that there is no reasonable prospect that he will be cured of his mental illness.
[Sub-s. (1) amended by s. 4 of Act No. 18 of 1996.]
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(2)  A court may grant a decree of divorce on the ground that the defendant is by reason of a physical disorder in a state of continuous unconsciousness, if it is satisfied—
(a)
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; and
(b)
after having heard the evidence of at least two medical practitioners, of whom one shall be a neurologist or a neurosurgeon appointed by the court, that there is no reasonable prospect that the defendant will regain consciousness.
(3)  The court may appoint a legal practitioner to represent the defendant at proceedings under this section and order the plaintiff to pay the costs of such representation.
(4)  The court may make any order it may deem fit with regard to the furnishing of security by the plaintiff in respect of any patrimonial benefits to which the defendant may be entitled by reason of the dissolution of the marriage.
(5)  For the purposes of this section the expressions “institution”, “mental illness”, “patient”, “State patient” and “reception order” shall bear the meaning assigned to them in the Mental Health Act, 1973.
[Sub-s. (5) amended by s. 4 of Act No. 18 of 1996.]
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About the Author

Mervyn Vermeulen
Mervyn Vermeulen
administrator

Mervyn Vermeulen is the founder and director of Vermeulen Attorneys. He specializes in Family Law, Labour Law, and Litigation.

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